Flanagan v Battie

On an application for a substantial interim payment, the court must assess a reasonable proportion of the likely final judgment under CPR r 25.7 and the approach in Eeles v Cobham Hire Services [2009] EWCA Civ 204. A payment may include sums referable to future losses where there is a real, reasonable and immediate need and a high degree of confidence that the trial judge will award sufficient capitalised damages. Real need is assessed on all the evidence. Expert medical evidence is important but is not indispensable, and appropriate weight may be given to an experienced case manager’s evidence. Where the proposed expenditure is reasonably necessary and controlled by the Court of Protection, it need not create an unfair litigation status quo. Special damages should be assessed by reference to the likely amount of the final judgment, including losses which will be past losses by the time of trial.

The claimant suffered catastrophic brain injury in a collision for which the defendant accepted liability. The claimant sought a further interim payment, reduced from £1.3 million to £500,000, to fund rented accommodation, 24-hour care, rehabilitation, therapies, case management and related expenses. The proposed move was intended to take him from a neurological centre which the evidence described as unsuitable and whose funding was at risk.

The defendant argued that the application was premature because the valuation evidence, including life expectancy and the Schedule of Loss, was inadequate. It was also argued that the claimant had not shown a real need for accommodation before trial and that the expenditure would create an unfair status quo. The central issues were whether real and present need had been established and how the proposed expenditure should be treated in the Eeles calculation.

1. Interim payment ordered. The claimant established a real and present need for alternative accommodation and the proposed rehabilitation and care package. The evidence showed that the existing placement was unsatisfactory, that its funding was vulnerable, and that there was a clear, professionally managed plan for community living with appropriate support.
2. Real need is a matter for assessment of all the evidence. It is not exclusively a matter for expert medical evidence. Evidence from an experienced case manager may carry substantial weight. In any event, the medical evidence, properly understood, supported the proposed move.
3. The proposed expenditure was not shown to be unreasonable. It would be supervised by the Court of Protection deputy, and there was a high degree of confidence that the trial judge would approve all or most of it as reasonably incurred special damages. The proposed move therefore did not create the unfair status quo identified in Eeles v Cobham Hire Services [2009] EWCA Civ 204.
4. Once real and present need was established, the stage-one calculation under Civil Procedure Rules 1998 r 25.7 could include the costs of the trial of independent living, because those costs would be past losses by the time of trial. The likely amount of the final judgment had to be assessed as at the date of that judgment, not by a literal application of the reference in Eeles to special damages “to date”.
5. Even on the defendant’s figures, there was almost enough available at stage one. Only about £150,000 needed to be drawn from future heads of loss under stage two. The order for £500,000 was accordingly made. The judge observed that, had the narrower calculation been required, the application would have been adjourned for better evidence on life expectancy and the Schedule of Loss.

First-instance decision. No prior appellate decision is stated in the judgment.