Best v Smyth

When assessing an interim payment in a personal injury claim, the court must conservatively assess the likely final judgment and order no more than a reasonable proportion of it. Where future losses may be met by periodical payments, additional future loss may be included only if the court can predict with a high degree of confidence that the trial judge will award a larger capital sum and the requested expenditure is reasonably necessary now. The court need not decide whether the claimant’s chosen property is suitable. It must assess whether the amount requested is reasonable. On contributory negligence, a substantial reduction requires evidential and legal support; unsupported submissions for a 50 per cent reduction were rejected.

The claimant, rendered paraplegic in a road traffic accident for which primary liability was admitted, applied for an interim payment of £800,000. The proposed payment was principally intended to fund the purchase and adaptation of wheelchair-accessible accommodation, together with care and equipment.

The defendant disputed the reasonableness and urgency of the proposed expenditure and relied on alleged contributory negligence, including failure to wear a seat belt and knowingly travelling with an intoxicated driver. The central issues were the proper application of Eeles v Cobham Hire Services Ltd and whether the evidence justified the amount sought.

1. The application succeeded in part. The court ordered an interim payment of £650,000.
2. Under CPR Part 25.7(4), the payment must not exceed a reasonable proportion of the likely final judgment. Applying the guidance in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204, the court first assessed general damages, past losses, interest and accommodation costs on a conservative basis. The court could then include additional future losses only if it could confidently predict that the trial judge would award a larger capital sum and if the requested expenditure was reasonably necessary immediately.
3. The claimant had a real and immediate need for wheelchair-accessible accommodation. The court was not required to determine whether the particular bungalow was suitable, since that was a matter for the claimant. It was required to determine whether the amount needed was reasonable.
4. Having compared the expert accommodation evidence, the court had the required high degree of confidence that expenditure of approximately £650,000 was reasonably necessary. The evidence did not justify including the whole sum claimed for alterations or two years of care. The likely final judgment, after a conservative allowance for contributory negligence, was assessed at approximately £2 million, making £650,000 a reasonable proportion.
5. For contributory negligence, the court noted the guidance in Froom v Butcher [1976] QB 286 and Owens v Brimmell [1977] QB 859. It proceeded on the basis of a maximum possible reduction of 30 per cent. There was no supporting authority for the defendant’s proposed 50 per cent reduction.
6. The court also criticised the defendant’s failure to provide evidence supporting substantial disputed heads of loss, although no adjournment had been sought.

First instance decision. No prior appellate decision is stated in the judgment.