RH (A Child) v University Hospitals Bristol NHS Foundation Trust

Where a periodical payments order depends on statistical earnings data, the court may amend the order when methodological or classification changes prevent the prescribed calculation from being performed. The replacement method must be fair, reasonable and proportionate, and should minimise inappropriate variance between the parties. A model order may be approved for future cases, but it cannot automatically be imposed on parties in other existing cases that are not before the court. For a child or protected party, a Deputy’s acceptance of amended calculation provisions is not a settlement, compromise, payment or acceptance of money paid into court requiring approval under the relevant civil procedure provisions.

The claimant, who had cerebral palsy following admitted negligence in the management of his birth, had previously obtained approval of damages including a periodical payments order for future care and case management. The order used ASHE 6115 earnings data rather than the Retail Prices Index. Following occupational reclassification and a change in methodology by the Office for National Statistics, the historical data required by the order could no longer be obtained.

The parties returned to the High Court seeking approval of amendments that substituted the first-release data for the unavailable revised data, deemed reclassification to have occurred in specified circumstances, and created a mechanism for future disputes and deferred payments.

1. Amendments to the order. The court was entirely satisfied that the proposed amendments to the order in RH (A Child) v University Hospitals Bristol NHS Foundation Trust were fair, reasonable, necessary and appropriate. They provided a workable solution to the failure to publish the data required by the original formulae.
2. Reclassification and missing data. Reclassification was deemed to have occurred where the Office for National Statistics had not published revised data for both the previously applied and new occupational classifications. The new occupational code was to apply unless the court otherwise ordered. Where the revised historical figure, “AF”, was unavailable, the first-release figure, “OPF”, was to be substituted.
3. Future operation. The amended model order was approved for use in future NHS Litigation Authority cases involving care and case-management periodical payments. The amendments also required the effects of reclassification or methodological change to be calculated and notified promptly, including where payments were deferred.
4. Existing orders. The 642 other cases were not before the court, so their orders could not be imposed upon or formally amended by this court. Formal amendment in each case was unnecessary and disproportionate. Acceptance by a Deputy of the amended provisions would not constitute a “settlement”, “compromise”, “payment” or “acceptance of money paid into court” for the purposes of CPR 21.10(1) and CPR21PD.6. Positive registration of acceptance was unnecessary; objections could instead be made.
5. Objections and wider guidance. An objecting claimant or Deputy would need sound expert evidence showing a technical flaw, a materially superior alternative, or a case-specific reason why the solution was unworkable. The court strongly encouraged acceptance, while recognising that an unsuccessful objection might attract costs. Compensators outside the NHS Litigation Authority were urged to review comparable orders and consider similar amendments where necessary.

The judgment records that the original periodical payments decision was made by Mackay J in June 2007. The Court of Appeal dismissed appeals in four test cases in November 2007, and the House of Lords later granted permission to appeal; the petition was withdrawn in May 2008. The present judgment concerned the subsequent amendment and operation of the model order.