Brown ( A Minor) v Emery

On an application for an interim payment where future damages may be paid periodically, the court must assess the likely capital award conservatively, leaving periodic-payment heads out of account. Accommodation costs should be included only where the court has a high degree of confidence that the trial judge will award them. A dispute about the claimant’s best interests may create an “unlevel playing field”. That is a factor in the assessment, rather than an absolute bar, unless the defendant’s position is plainly wrong. The court may order a reasonable proportion of the likely capital award, taking account of the claimant’s entitlement to use her money.

The claimant suffered catastrophic brain injury as a rear-seat passenger in a vehicle driven by the defendant. Liability was admitted. She was receiving inpatient rehabilitation and sought an interim payment to fund suitable accommodation, transport and case management.

The parties agreed the likely value of general damages and past losses. They disputed whether accommodation costs should be included in the capital sum likely to be awarded at trial, given the unresolved question whether the claimant’s best interests required care at home or in publicly funded accommodation. The application required the court to assess the likely capital award while excluding the capitalised value of prospective periodic payments.

1. Application granted. The defendant was ordered to make an interim payment of £250,000.
2. Following Cobham Hire Services Limited v Eeles [2009] EWCA Civ 204, the likely final judgment was to be assessed conservatively, excluding heads of future loss which the trial judge might deal with by periodic payments. A larger capital assessment could be made only where the court was highly confident that the trial judge would award the relevant future loss and that the expenditure was reasonably necessary.
3. The claimant had not established the high degree of confidence required to include accommodation costs. There was a real dispute about whether home care was in her best interests, and resolving that issue at the interim stage would risk creating an unlevel playing field. Under Campbell v Mylchreest [1999] PIQR 17, that circumstance was a factor to be weighed, not an absolute bar. The defendant’s position was not plainly wrong.
4. The court nevertheless treated the likely capital award as the claimant’s money, following the principle in Stringman v McArdle [1994] 1 WLR 1653. In a case involving likely periodic payments, only the capital sum, and not the capitalised value of those payments, could be considered.
5. The likely capital award, excluding accommodation costs and periodic payments, was approximately £395,000. After previous interim payments, approximately £320,000 remained. A payment of £250,000 represented a reasonable proportion. An alternative calculation including accommodation costs was provided, but the court held that those costs could not properly be given significant weight at this stage.