RH (By his Mother & Litigation Friend LW) v United Bristol Healthcare NHS Trust & Ors [Indexing]

A court approving a periodical-payments order may amend the indexation mechanism without reopening the whole order. An indexation scheme must be workable and sufficiently clear for practical implementation, including where statistical data are revised, methodologies change or classifications are restructured.

The court retains an independent duty to satisfy itself that periodical payments are reasonably secure. A claimant may therefore apply to reopen that issue if the apparent security proves illusory. A costs provision must not fetter the discretion of the judge determining a future application; costs should ordinarily be decided in light of the particular dispute and its reasonableness.

Three cases concerned proposed amended orders for future care costs payable by periodical payments. The Court of Appeal had rejected the defendants’ appeals against indexation by reference to RPI and ASHE Standard Occupational Category 6115. The defendants obtained permission to appeal to the House of Lords, but the appeals were discontinued after the parties reached a compromise.

The first-instance orders were remitted for approval of revised indexation mechanisms. Only limited amendments remained in issue, including provisions concerning restoration, consequential costs, the state funding protocol and the security of periodical payments.

1. Approval of amended orders. The court was asked to approve the indexation mechanism rather than rewrite the original orders in their entirety. Clauses concerning the continuation of the stay and permission to restore were technically superfluous because they appeared in the original orders, but their inclusion improved readability and caused no substantive prejudice.
2. Security of periodical payments. In the Corbett order, a further clause concerning whether payments were reasonably secure under Damages Act 1996, s.2(3) and s.2(4)(c), was unnecessary. The court itself had an independent duty to satisfy itself that the payments were reasonably secure. If the security provisions later proved illusory or misplaced, the claimant could return to court and seek to reopen that issue.
3. Costs provisions. A proposed presumptive costs clause relating to applications under the state funding protocol would impermissibly constrain the discretion of the judge hearing a future dispute. Although the protocol primarily benefited the defendant, it formed part of an overall compensation scheme protecting the claimant. The costs of any reasonably necessary application should be determined by the judge hearing it, who could consider the parties’ competing arguments and the reasonableness of the application.
4. Workability of indexation. The revised schedule adequately addressed delayed and revised ASHE data, possible discontinuity caused by methodological changes, and possible reclassification of home carers. Workability was an essential requirement of an indexation scheme, and that requirement was satisfied.
5. The three orders were approved with the alterations identified. Clauses 4, 5 and 6 were removed from the Corbett order, while the corresponding agreed amendments were made to the other orders.

• Court of Appeal: Appeals by the defendants against indexation of future care costs were rejected.
• House of Lords: Permission to appeal was granted, but the appeals were discontinued following a compromise.
• High Court (Queen’s Bench Division): The first-instance orders were remitted for approval of revised indexation mechanisms and were approved with amendments.