PZC (A Child, By Her Mother and Litigation Friend, JZC) v Gloucestershire Hospital NHS Trust

In assessing an interim payment where the final award may include periodical payments, the court must conservatively estimate the likely capital award, excluding future losses likely to be dealt with by periodical payments, subject to established treatment of accommodation costs. A further sum may be included only where the court can confidently predict that the trial judge will make a larger capital award and there is a real and immediate need for the proposed expenditure. The court must be satisfied that the amount is reasonable and that expenditure of approximately that amount is reasonably necessary. The interim payment must remain a reasonable proportion of the likely final judgment and should not constrain the trial judge.

The claimant, a child who had suffered severe cerebral palsy following injuries at or close to birth, brought a clinical negligence claim in which breach of duty and causation had been admitted. Damages remained to be assessed at a trial listed approximately five months later.

She sought interim payments of £85,000 for limited future expenditure and £845,000 to fund the purchase of a large property intended to meet her accommodation needs. The first application was not disputed. The central issue was whether the proposed accommodation payment was justified under the two-stage approach described in Cobham v Eeles [2010] 1 WLR 409.

1. The court held that the agreed interim payment of £85,000 should be made. The remaining application for £845,000 towards the purchase of Bryn Melyn was refused.

2. Under CPR 25.7.4, an interim payment must not exceed a reasonable proportion of the likely final judgment. The assessment applies whether the final damages will comprise a lump sum, periodical payments, or both.

3. Applying the approach in Cobham v Eeles [2010] 1 WLR 409, the court first assessed the likely capital award conservatively, leaving out future losses likely to be dealt with by periodical payments. Accommodation costs could properly be included as a lump-sum element. On that basis, the likely award for PSLA, special damage and accommodation was sufficient to justify an interim payment of approximately £700,000 after credit for sums already paid.

4. The second stage permitted consideration of additional future loss only if the court could confidently predict that the trial judge would award a larger capital sum, was satisfied that accommodation was needed immediately, considered the requested sum reasonable, and was satisfied to a high degree of confidence that expenditure of approximately that amount was reasonably necessary.

5. Although the claimant’s existing accommodation was becoming unsuitable and her needs were substantial, the court was not satisfied that the move could not await the imminent trial or that the proposed property and expenditure were reasonably necessary. Bryn Melyn was substantially larger and more expensive than required. No general accommodation fund was ordered, particularly because the claimant was an infant and the Court of Protection was not yet administering her affairs. A specific proposal could in principle have been considered, but the proximity of trial made it preferable to leave the issue for final determination.

Not an appeal. The judgment determined interim-payment applications in pending clinical-negligence proceedings.