Haynes v Kingston Hospital NHS Trust

On an application for a substantial interim payment, the court must assess the likely capital award conservatively and order no more than a reasonable proportion of it. Accommodation costs may ordinarily be included in that assessment.

Where a periodical payments order is likely, additional future losses may be included only where the court can predict with a high degree of confidence that the trial judge will make a capital award covering them. For an urgent house purchase, there must be a real present need and the proposed expenditure must be reasonably necessary and reasonable in amount. The interim judge need not decide the ultimate suitability of the property, which remains for the trial judge or Court of Protection.

The claimant, an eight-year-old child with profound disabilities caused by the defendant’s admitted negligence, applied under CPR rule 25.7 for a further interim payment of £1.6 million. The money was sought to purchase and adapt alternative accommodation.

Liability had been determined, and the claims for general damages, past losses and interest had been agreed. The remaining issues, including future accommodation and other future losses, were due to be tried on 20 October 2014. The central questions were whether the payment was a reasonable proportion of the likely final judgment, whether there was an urgent present need for accommodation, and whether the proposed expenditure was reasonably necessary.

1. Approach under Eeles v Cobham Hire Services Ltd. At the first stage, the court assessed the likely final judgment conservatively, excluding future-loss heads likely to be dealt with by periodical payments. Accommodation costs, including future running costs, could ordinarily be included in the expected capital award. A reasonable proportion could be high if the underlying assessment was conservative.
2. At the second stage, the court could include further future losses only if it could predict with confidence that the trial judge would make a larger capital award. Where the payment was sought to buy a house, the court had to find a real need for accommodation immediately, rather than after trial, and that expenditure of approximately the proposed amount was reasonably necessary. It did not have to decide whether the particular property was suitable, since that was a matter for the Court of Protection.
3. The claimant’s accommodation was insecure because the rented property might shortly be lost and the proposed property might be sold to another purchaser. There was therefore a real and urgent need for alternative accommodation before trial.
4. The court was satisfied, to a high degree of confidence, that the trial judge was likely to award a capital sum of at least £3 million. In making that assessment it was permissible, though requiring caution, to take some account of the parties’ positions at a without-prejudice settlement meeting.
5. The defendant had not identified a prima facie suitable alternative property within the required borough. On the evidence available, the proposed expenditure was reasonably necessary and urgently required. The further interim payment of £1.6 million was ordered. The claimant was awarded the reasonable costs of the application, subject to detailed assessment, and permission to appeal was refused.

First-instance application under CPR rule 25.7. No prior appellate history was stated in the judgment.