Oxborrow (A Minor) v West Suffolk Hospitals NHS Trust

On an application for an interim payment, the court must make a conservative assessment of the likely final judgment and order no more than a reasonable proportion of that amount. Accommodation costs may ordinarily be included in the capital assessment. Additional future losses may be included only where the court has a high degree of confidence that the trial judge will capitalise them and there is a real and immediate need for the money. The court need not determine the precise suitability of proposed accommodation, but must be satisfied that expenditure of approximately the proposed amount is reasonably necessary. Established principles governing accommodation damages should not be assumed to be displaced at an interim stage.

Liability for negligent treatment resulting in severe quadriplegic cerebral palsy had been admitted, and judgment for damages to be assessed had been entered on 8 November 2010. An interim payment of £100,000 had already been made.

The claimant, aged five, applied for a further interim payment of £740,000 to acquire and adapt suitable accommodation. The existing rented bungalow was accepted to be unsuitable. The evidence addressed the claimant’s accommodation requirements, limited life expectancy and the likely cost of suitable premises. The defendant contended that rented accommodation with modest adaptations might suffice and disputed the extent to which accommodation costs should be included in the interim assessment. The central issue was whether the court could confidently predict that the trial judge would award sufficient capital to fund suitable accommodation.

1. Interim payment principles. The approach stated by the Court of Appeal in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204; [2010] 1 WLR 409 was applied. The court first assesses the likely final judgment conservatively, ordinarily including general damages, past losses, interest and accommodation costs. A reasonable proportion may be high, provided the assessment protects against over-payment.
2. Future losses may be included where the court can confidently predict that the trial judge will award a larger capital sum than those ordinary heads of loss. The claimant must demonstrate a real need for the interim payment. In an accommodation case, the court must be satisfied to a high degree of confidence that expenditure of approximately the proposed amount is reasonably necessary. It need not determine whether a particular property is suitable, since that is a matter for the Court of Protection.
3. The evidence established a real and immediate need for suitable accommodation. The existing property was inadequate, the claimant’s needs were exceptionally severe, and there was no evidential basis for concluding that long-term renting with modest adaptations would meet those needs. The court therefore had the required high degree of confidence that the trial judge would allocate sufficient capital for suitable accommodation.
4. The court accordingly ordered a further interim payment of £740,000. The order was justified under the second stage of the Eeles approach, irrespective of whether the accommodation element would ultimately be calculated by reference to the full capital cost or the established Roberts v Johnstone method.
5. The judge considered submissions that Roberts v Johnstone [1989] 1 QB 878 did not address cases in which its calculation produced a substantial shortfall against the cost of suitable accommodation. The point was left open. The established approach remained one which a first-instance court, particularly on an interim application, should not assume that the trial judge would abandon.

The judgment describes prior procedural steps within the same proceedings:

• High Court (Queen’s Bench Division): liability was admitted and judgment for damages to be assessed was entered on 8 November 2010. A further interim payment of £740,000 was ordered on the present application.