Porter v Barts Health NHS Trust

On an application for an interim payment, the court must assess the likely final judgment conservatively and avoid prejudicing the trial judge’s freedom to make periodical payment orders.

Where a claimant demonstrates an urgent need for capital expenditure, the court may include future losses under the second stage of Eeles if it has a high degree of confidence that the trial judge will award those losses as capital sums rather than periodical payments. Special accommodation may justify a substantial interim payment where the existing accommodation is unsuitable and the proposed expenditure is reasonably necessary. The court must avoid both over-compensation and under-compensation.

This was a clinical negligence claim arising from a hypoxic brain injury sustained at birth. Liability had been compromised at 80 per cent, and the claimant sought a further interim payment of £1.9 million towards suitable accommodation, adaptations, equipment and care pending the quantum hearing.

The claimant’s existing home was wholly unsuitable for her severe disabilities. Birch House had been identified as capable of conversion and adaptation. The issue was whether the requested payment was a reasonable proportion of the likely final judgment under CPR Part 25, including whether future accommodation and other losses could properly be taken into account at the second stage of the Eeles approach.

1. The application was granted. The further interim payment of £1.9 million, when added to the earlier £500,000 payment, would not exceed a reasonable proportion of the likely final award.

2. Under CPR Part 25.7(4), the court must not order more than a reasonable proportion of the likely final judgment. Applying Eeles v Cobham Hire Services [2009] EWCA Civ 204, the court first assessed general damages, past losses, interest and those future losses unlikely to be dealt with by periodical payments. That assessment was made conservatively, producing an estimated available sum of £972,000 after the settlement discount.

3. At the second stage, the court could include capitalised future losses only where there was a real need for the payment before trial and a high degree of confidence that the trial judge would award the relevant losses as lump sums rather than periodical payments. The approach in Oxborrow v West Suffolk Hospitals NHS Trust [2012] EWHC 1010 (QB) supported that analysis.

4. The claimant’s accommodation need was urgent and pressing. Her existing home prevented proper mobility, therapy, bathing arrangements and accommodation for carers. Birch House was the only viable solution identified after an extensive search. Its greater size and cost did not make the expenditure unreasonable where precisely matching accommodation was unlikely to be available.

5. The change to a negative discount rate meant that the approach in Roberts v Johnstone [1989] 1 QB 878 could no longer provide a meaningful accommodation award. The court remained bound by the compensatory principle in Wells v Wells [1999] 1 AC 345, namely that compensation should place the claimant as nearly as possible in the financial position she would have occupied absent the injury. The principles in George v Pinnock [1973] 1 WLR 118 remained relevant, but could not justify under-compensation.

6. The court had high confidence that the trial judge would award a substantial capital sum for accommodation and would use lump sums for several other heads, while future care and case management were likely to be dealt with by periodical payments. The estimated total available under both stages was £3.134 million, making the requested payment permissible.

First-instance decision. No appellate history was stated in the judgment.