FP v Taunton & Somerset NHS Trust

On an interim payment application, the court must conservatively assess the likely capital value of the final judgment, excluding future losses which may be dealt with by a periodical payment order. It may include accommodation costs where the need is established and the amount claimed is reasonable. The interim payment must remain a reasonable proportion of the likely final judgment and must not fetter the trial judge’s discretion to make a periodical payment order. A high proportion may nevertheless be reasonable where the assessment is conservative and the claimant has an urgent need for accommodation. Appropriate safeguards may be required to ensure that the payment is used for the purposes claimed.

The claimant brought a wrongful birth claim arising from allegedly inadequate antenatal care. Liability had been admitted and judgment for damages to be assessed had been entered by consent. The claimant sought a further interim payment of £1.5 million, principally for suitable accommodation and care for her disabled son, together with a stay because his prognosis remained uncertain.

The defendant accepted that a periodical payment order could be considered for present purposes, but disputed the amount of the interim payment. The central issues were the likely capital value of the final judgment, the appropriate multiplier, the treatment of future care and accommodation costs, and the safeguards required for expenditure of the payment.

1. Stay. The action was stayed for two years because the child’s prognosis was presently too uncertain for a realistic assessment, while future developments might assist the experts.
2. Applicable approach. Under CPR 25.7(4), the court must not order more than a reasonable proportion of the likely final judgment. Applying Cobham Hire Services Ltd v Eeles [2009] EWCA Civ 204, the court first assessed the likely capital award on a conservative basis, leaving out future losses which the trial judge might address by periodical payment order. The trial judge’s options must not be inhibited.
3. The court adopted a cautious life expectancy of 20 years and rejected a further discount to the actuarial multiplier. Accommodation costs could be included in the estimated capital award, but the court had to be satisfied both that there was a real present need and that the amount sought was reasonable.
4. The proposed £1.5 million payment was impermissible because it exceeded the likely final judgment and would risk prejudicing the availability of a periodical payment order. It was not appropriate to assume either that the order would be postponed or that no periodical payment order would be made.
5. A payment of £1.2 million was justified. Although it represented a high proportion of the estimated final judgment, Eeles established that a high proportion could be reasonable where the assessment was conservative and the claimant had an urgent accommodation need. The approach was consistent with Braithwaite v Homerton University Hospital NHS Foundation Trust [2008] EWHC 353 (QB).
6. Because the claimant’s claim was based on expenses necessary for the child’s care, reasonable assurance was required that the interim payment would be used for those purposes. The claimant’s solicitor therefore undertook to retain the money in the firm’s client account and make payments only against appropriate evidence such as receipts or invoices.

An interim payment of £1.2 million was ordered, with consequential orders to be addressed.