Grainger v Cooper

An interim payment must not exceed a reasonable proportion of the likely final judgment. The Eeles approach requires the court first to assess recoverable lump-sum heads conservatively, excluding future losses likely to be dealt with by periodical payments. Future losses may be included only where the court can predict, with a high degree of confidence, that the trial judge will capitalise them and where the requested expenditure is reasonably necessary before trial. The interim payment judge must not usurp or fetter the trial judge’s function. A proposed payment may also be withheld where it would create an unlevel playing field on a genuinely contested care or accommodation issue. The court may nevertheless make a stage-one payment where the claimant’s proposed purchase would not materially prejudice the trial judge’s ability to decide the issue.

The claimant suffered catastrophic spinal injuries causing paraplegia in a motorcycle accident. Liability had been admitted and judgment had been entered for damages to be assessed at a trial listed for January 2016. She applied for a further interim payment to purchase and adapt a property, reducing the amount sought at the hearing to £425,000.

The application engaged the limit in CPR Part 25.7 and the two-stage guidance in Cobham Hire Services Ltd v Eeles [2009] EWCA 204. The central issues were whether the requested sum could be justified under the second stage, whether there was a real and reasonable necessity for alternative accommodation before trial, and whether payment would create an unlevel playing field.

1. The application was granted in part. The claimant was awarded a further interim payment of £133,000.

2. Under CPR Part 25.7(4), the payment must not exceed a reasonable proportion of the likely final judgment. Applying the first stage of Cobham Hire Services Ltd v Eeles [2009] EWCA 204, the judge used the defendant’s counter-schedule, rounded conservatively, and assessed the relevant lump-sum heads at £1,272,400. Ninety per cent produced £1,145,160. After credit for previous payments and CRU sums, only £133,396 remained available.

3. The requested £425,000 could not be ordered without recourse to the second stage. That stage permits capitalised future losses to be included only where the judge can predict with a high degree of confidence that the trial judge will capitalise them. The judge was not sufficiently confident that future earnings and recurring future losses would be capitalised, particularly given the claimant’s young age and near-normal life expectancy.

4. The claimant was adequately accommodated in her parents’ recently adapted home. Although independent accommodation was plainly desirable and the claimant was emotionally attached to the proposed property, there was no reasonable necessity to incur expenditure on alternative accommodation before trial.

5. The interim payment judge must not usurp or fetter the trial judge’s discretion. However, the level-playing-field consideration may be relevant even to a stage-one payment where the claimant proposes a fundamental change to the existing care or accommodation regime. The principle in Campbell v Mylchreest [1999] PIQR Q17 was applied by analogy.

6. Payment was nevertheless appropriate. If the claimant purchased the property, she could not adapt it before trial, and would have to sell it if the trial judge found it unsuitable. The purchase would therefore not prevent the trial judge from determining the accommodation issue dispassionately.