LP v Wye Valley NHS Trust

On an application for an interim payment, the court must make a conservative assessment of the likely final judgment and ensure that the payment is no more than a reasonable proportion of that assessment. Future losses ordinarily payable by periodical payments must be excluded. They may be included only where the court can confidently predict that the trial judge will award a larger capital sum and there is a real, immediate need for the requested expenditure. Accommodation costs may be included where adapted accommodation is reasonably necessary. A negative discount rate does not necessarily justify excluding capital accommodation costs where that would fail to meet the claimant’s reasonable accommodation need.

The claimant, a protected party who had suffered disabling strokes, sought a further interim payment of £400,000 to fund the purchase and adaptation of suitable single-storey accommodation. The defendant had admitted breach, accepted 95% liability for the principal stroke damage, and had already paid £100,000 voluntarily. The parties had compromised the remaining issues concerning the effects of the strokes. The central questions were the proper application of the two-stage approach to interim payments and whether capital accommodation costs could be included in the conservative assessment of likely damages.

1. Interim payment principles. Applying Eeles v Cobham (2009) EWCA Civ 206, the court first had to assess the likely final judgment conservatively, excluding future-loss heads which the trial judge might deal with by a periodical payments order. A high proportion could be reasonable if the assessment was conservative.
2. At the second stage, capitalised future losses could be included only where the court could confidently predict that the trial judge would award a larger capital sum and was satisfied that there was a real need for the payment requested. The claimant’s extensive care, cognitive and mobility needs established that real need.
3. The court assessed general damages, interest, past and near-future losses, case management, therapies, Court of Protection costs and equipment at £343,500 before liability reduction. It applied a 25% discount to the disputed heads of loss and made a conservative allowance of £180,000 for accommodation, including capital costs, adaptation and ancillary expenses.
4. Although the traditional Roberts v Johnstone approach produced no capital-cost award at the negative discount rate, the court adopted the reasoning of Porter v Barts Health Care NHS Trust (2017) EWHC 3025 (QB). It was wrong in principle to use the negative rate to deny plainly necessary capital accommodation costs. A conservative alternative rate of 1.3% was adopted.
5. The resulting conservative assessment was £524,000, reduced by 5% for the liability compromise to £497,800. A further interim payment of £350,000 was ordered, payable within 14 days, bringing total interim payments to just under 90% of the conservative estimate. Costs were left for agreement or further submissions.

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