Brewis v Heatherwood & Wrexham Park Hospitals NHS Trust

When assessing an interim payment in a substantial personal injury claim, the court should estimate the likely lump-sum element of the final award, including general damages, past losses, accommodation and interest, and deduct payments already made. It must order no more than a reasonable proportion of the likely judgment and should preserve the trial judge’s freedom to allocate damages between capital and periodical payments. That does not require reducing an otherwise reasonable payment merely because future periodical payments may be ordered. The claimant’s immediate and specific needs, including suitable accommodation, and the need for damages to be paid as soon as reasonably practicable remain important. A defendant who argues that the payment would fetter the trial judge’s discretion should identify at least a real risk of that occurring.

The claimant, a child with severe cerebral palsy caused by birth asphyxia, had obtained judgment for damages to be assessed after liability and causation were admitted. He sought an interim payment of £950,000 to purchase and adapt suitable accommodation, together with permission to rely on further expert evidence concerning assistive technology and communication needs. The claim exceeded £5.6 million, and substantial future care and case-management losses were likely to be addressed by periodical payment orders.

The issues were the reasonable amount of the interim payment under CPR Part 25, its relationship with the trial judge’s possible periodical payment orders, and whether further expert evidence should be permitted.

1. Interim payment. The court ordered an interim payment of £874,171.40 under CPR Part 25. The sum was within the estimated net lump-sum award at trial after allowing for earlier interim payments.
2. The proper approach was to identify the likely awards for general damages, past losses and interest, then predict the likely capitalisation of the remaining claims. The court had to ensure that the payment was no more than a reasonable proportion of the likely final judgment and did not fetter the trial judge’s discretion over capital and periodical payments.
3. The court also had to consider the claimant’s particular and immediate needs and the requirement that damages be paid as soon as reasonably practicable. Suitable accommodation was an urgent and undisputed need. The reasoning in Braithwaite v Homerton University Hospitals NHS Foundation Trust was applicable, whereas the concerns arising in Mealing v Chelsea & Westminster NHS Trust were absent. The defendant had not demonstrated a sufficient risk that the proposed payment would affect future periodical payments.
4. The court rejected the suggestion that the payment would encourage delay. The existing case-management timetable made delay unlikely, and the evidence showed prudent expenditure. A defendant could properly raise the point, but the court had to assess it on the facts.
5. Further expert evidence. The application was declined at that stage. The existing experts were directed to address the claimant’s communication needs urgently if within their expertise. If not, a separate report could be obtained; further expert evidence would be considered only if that report disclosed a live issue.