Christie & Anor v Rogers

On an application for an interim payment where periodical payments may be ordered at trial, the court must preserve the trial judge’s discretion. The total interim payment must remain a reasonable proportion of the likely capital award. The court should first make a conservative assessment of the conventional capital award, normally excluding future losses likely to be dealt with by periodical payments. Additional future losses may be included only where there is a real and evidenced present need, and the court is highly confident that the trial judge would make a corresponding capital award. The claimant’s alternative resources and the consequences of granting or refusing relief are relevant to the discretion. In unusual circumstances, the burden of meeting immediate needs may properly be shared between an interim payment and the claimant’s own resources.

The first claimant suffered catastrophic injuries in a road traffic accident. Liability was admitted. She sought a further interim payment to meet care, living expenses and outstanding liabilities until trial, which was not expected to take place until November 2010.

Earlier interim payments totalled £1.54 million. Much of that money had been used to purchase a property which remained vacant pending adaptation. The application therefore required the court to consider both the claimant’s immediate needs and whether a further payment would interfere with the trial judge’s possible exercise of the discretion to make periodical payments under the Damages Act 1996.

1. Application granted in part. A further interim payment of £150,000 was ordered.
2. The governing approach was that in Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204. The court first assessed the likely conventional capital award conservatively, including general damages, special damages and accommodation costs, while excluding future heads likely to be dealt with by periodical payments.
3. The court then considered whether it could confidently predict that the trial judge would make a larger capital award. That required evidence of a real and present need for the payment and a high degree of confidence that the relevant expenditure would properly be met by capital rather than periodical payments.
4. The court accepted a real need of £20,000 per month for care and living expenses, together with £50,000 of outstanding liabilities. Rent, a contingency fund and a proposed holiday were excluded from the immediate need. The court also identified further potential capital awards, but declined to capitalise all future heads of loss because doing so could unduly fetter the trial judge’s discretion.
5. The claimant’s alternative resources were relevant. The court could properly expect her to consider accessible inheritance and the possibility of releasing equity from the property, particularly because the reasonableness of purchasing that property remained for the trial judge. The court also considered the risks of compromising care and forcing a sale if no payment were made.
6. The decision in Braithwaite v Homerton University Hospital, paragraph 15, supported the conclusion that a capital award may require some postponement or reduction of periodical payments. A further first-instance decision, Mollie Johnson v Chesterfield v Derbyshire Royal Hospitals NHS Trust, was treated only as an illustration and supplied no additional principle.
7. Given the unusual circumstances, the burden of meeting the claimant’s needs to trial was shared. The award was described as being at the limits of a reasonable proportion of the likely final award, but justified under the approach in Eeles.