SPG v University Hospital Southampton NHS Foundation Trust

In assessing an interim payment, the court must make a conservative estimate of the likely capital judgment and award no more than a reasonable proportion of it. Future losses which may be dealt with by periodical payments should generally be excluded unless there is a high degree of confidence that they will be awarded as capital and a real need for payment before trial.

An urgent need for suitable accommodation does not itself establish a real need for the requested capital payment. The claimant must provide evidence that reasonable interim alternatives, including rental accommodation, have been properly investigated. The risk of creating an established position at trial is relevant but is not determinative.

The claimant, a child with profound neurological injuries caused by circumstances surrounding his birth, brought a claim in which the defendant admitted breach of duty and causation. Judgment was entered for the claimant, with damages to be assessed.

The claimant sought a further interim payment of £1.8 million, in addition to £700,000 already paid, principally to purchase and adapt a bungalow and meet care, therapy and schooling costs. The defendant accepted that the existing accommodation was unsuitable but opposed the further payment. The central issue was whether the claimant had demonstrated a real and urgent need for the sum sought under the principles governing interim payments.

1. Disposition. The application for a further interim payment of £1.8 million was dismissed. Judgment was entered for the claimant, with damages to be assessed, and the proceedings were stayed until July 2021.
2. Under CPR r. 25.7(4), an interim payment must not exceed a reasonable proportion of the likely final judgment. The likely judgment must be assessed conservatively. The court must avoid prejudicing the trial judge’s freedom to decide whether future losses should be paid by periodical payments rather than as capital.
3. At the first stage of the Eeles v Cobham Hire Services Limited approach, the court considers heads of loss which the trial judge is bound to award as capital, including general damages, past losses, interest and usually accommodation costs. At the second stage, future losses may be included only where there is a high degree of confidence that they will be awarded as capital and a real need for payment before trial.
4. Although the claimant’s existing accommodation was wholly unsuitable and there was an urgent need for suitable accommodation, the evidence did not establish that the requested capital sum was reasonably necessary. The accommodation expert identified rental accommodation as the fastest interim solution, but the claimant had not provided sufficiently comprehensive evidence of the rental search or explained why identified properties were unsuitable.
5. The existence of approximately £620,000 from earlier voluntary payments was relevant because it could fund rental accommodation, adaptations, care, therapies and some education costs pending trial. The risk that expenditure might create an established position affecting the trial judge was also relevant, but not decisive. The application failed because the evidence did not show that a suitably comprehensive rental search had failed.
6. The court expressed no view on the likely capitalised value of future losses or on the reasonableness of the proposed bungalow. Any such view would have been unnecessary and provisional.