Zeb v Frimley Health NHS Foundation Trust

For an interim payment under rule 25.7(1)(c), the claimant must satisfy the court, on the balance of probabilities, that she would obtain judgment for a substantial sum at trial. A mere likelihood of success is insufficient. Pleaded contributory negligence or a novus actus interveniens does not automatically defeat the application, but must be assessed on the available evidence. An interim payment must remain a reasonable proportion of the likely final judgment. Speculative future losses cannot safely support an award.

The claimant brought a clinical negligence claim concerning delayed diagnosis and treatment of tuberculosis meningitis, allegedly causing devastating neurological injury. The defendant admitted breach of duty but pleaded contributory negligence and that the claimant’s own conduct was a novus actus interveniens.

Master Cook refused a second application for an interim payment of £175,000. The claimant appealed, raising the requirements of CPR 25.7(1)(c) and the effect of the pleaded defences. The issues were whether the court could be satisfied that she would obtain judgment for a substantial amount and, if so, what constituted a reasonable proportion of the likely final judgment.

1. Appeal dismissed. Under rule 25.7(1)(c), the claimant bore the burden of satisfying the court, on the balance of probabilities, that she would obtain judgment for a substantial amount at trial. The court had to place itself in the position of the trial judge. A mere likelihood of recovery was insufficient.
2. The pleading of contributory negligence or a novus actus interveniens did not by itself preclude an interim payment. The court had to assess whether the pleaded case could provide a complete defence, using the evidence and argument available at the interim stage.
3. The defendant’s factual case had substantial evidential support. The claimant arguably had received a probable diagnosis of tuberculosis in Pakistan, had failed to follow prescribed treatment and had failed to disclose relevant information to treating clinicians. Her conduct arguably constituted a successive sufficient cause of the injury. The causation argument had sufficient substance to prevent the court being satisfied that she would obtain judgment for a substantial sum.
4. Alternatively, if primary liability were established, contributory negligence could realistically have been assessed at 50 per cent. Applying the approach in