Clair Sellar-Elliott v Howling

On an application for an interim payment under Civil Procedure Rules 1998, r 25.7(1)(c), the claimant must satisfy the court, on the balance of probabilities, that if the claim went to trial the claimant would obtain judgment for a substantial sum. The court decides that question on the evidence before it at the application hearing. A defendant’s pleaded case, or an assertion that supporting expert evidence will be served later, may be insufficient to displace compelling evidence relied on by the claimant. The requirement that an interim payment be no more than a reasonable proportion of the likely final judgment must also be observed.

This was a defendant’s application for permission to appeal against Master Cook’s order requiring an interim payment of £100,000 in a clinical negligence claim. Breach of duty had been admitted, but causation remained disputed. The claimant relied on expert evidence that the liver mass would have been benign in 2008 and would probably have been successfully treated; the defendant relied principally on a pleaded causation case and limited solicitor evidence stating that her expert disagreed.

Mr Justice Sweeney refused permission to appeal. The related application to set aside a stay was not considered because permission was refused. The central issue was whether the Master had applied the correct test and was entitled to decide the application on the evidence placed before him.

1. Outcome. Permission to appeal was refused. The application to set aside the stay was not considered because it had become unnecessary.
2. Under Civil Procedure Rules 1998, r 25.7(1)(c), the claimant had to satisfy the court, on the balance of probabilities, that if the claim went to trial the claimant would obtain judgment for a substantial sum. It was insufficient to show merely that an award was likely. The court adopted the formulation in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (No 2), [2012] EWCA Civ 57; [2012] 1 WLR 2375.
3. The application had to be determined on the material before the judge at the time of the hearing. The rules gave the respondent an option, but imposed no obligation, to file evidence. A defendant could rely on argument alone, but if the defendant chose to rely on limited evidence the court was entitled to assess the strength of the claimant’s evidence on that record.
4. Master Cook was entitled to find the claimant’s expert evidence compelling. The defendant’s pleaded case and solicitor’s assertion that reputable expert evidence supported it did not require the court to assume that further evidence would undermine the claimant’s case. In the particular circumstances, the absence of reasoned expert criticism meant that the claimant had established the statutory conditions to the requisite standard.
5. The Master’s reference to Smith v Bailey, [2014] EWHC 2569 (QB); [2015] R.T.R. 6, was permissible to the extent that it recognised that the application had to be decided on the evidence before the court. Any reference to an evidential burden on the defendant was context-specific and did not alter the legal burden on the claimant under r 25.7(1)(c).
6. The court also confirmed that an interim payment must not exceed a reasonable proportion of the likely final judgment under r 25.7(4). The proposed appeal had no real prospect of success.

• High Court (Queen's Bench Division). Master Cook ordered an interim payment of £100,000 on 29 October 2015. Mr Justice Sweeney refused permission to appeal against that order on 3 March 2016: [2016] EWHC 443 (QB).
• Singh J had granted a stay pending determination of the permission application. The claimant’s application to set aside that stay was not considered after permission to appeal was refused.