Howard v The Imperial London Hotels Ltd

Where future treatment costs are liable to change quickly in duration, prescription or expense, a court-ordered periodical payments order may be unsuitable because the statutory scheme requires defined payments and permits only limited variation. In urgent mesothelioma claims, properly supported interim payment applications may provide a more flexible and prompt mechanism for funding treatment. A party intending to seek a periodical payments order should give early and clear notice, enabling the opponent, court and experts to address the relevant issues. The claimant’s preference and needs are relevant, but a trust-supported periodical payments order must still be proportionate, cost-effective and sufficiently certain.

The claimant suffered terminal mesothelioma and had received privately funded immunotherapy. Liability had been established, and the parties agreed a lump sum covering general damages and past losses, including treatment costs. The defendant accepted in principle that it would fund reasonable future immunotherapy, chemotherapy or other recommended treatment, either directly or by indemnity.

The remaining issue was whether future treatment should be funded by a court-ordered periodical payments order, including a trust mechanism proposed by the claimant, or whether the future-treatment claim should be adjourned so that funding could be addressed through interim payments. The periodical payments claim had been introduced shortly before trial and had not been expressly pleaded.

1. Statutory framework. Under Damages Act 1996, section 2(1), the court must consider whether future pecuniary loss should be paid periodically. CPR 41.17 requires consideration of all the circumstances, particularly the form of award best meeting the claimant’s needs and the factors in PD 41B. The statutory regime nevertheless requires a sufficiently defined annual amount and payment intervals. The variation powers under Damages (Variation of Periodical Payments) Order 2005 are limited and do not provide a general power to review the claimant’s position.
2. Suitability of a PPO. Immunotherapy presented uncertainty as to both duration and prescription. A PPO funding a fixed quarterly amount, with broadly defined future treatment and variation provisions, would struggle to provide the required certainty while accommodating rapidly changing clinical recommendations. The difficulty was inherent in the proposed mechanism, rather than merely a defect capable of being cured by drafting.
3. Interim payments. The specialist Asbestos List provides unusually prompt and flexible access to the court for urgent applications. In a living mesothelioma claim with limited life expectancy, interim payment applications could respond to changes in treatment without first determining whether the changed treatment fell within a PPO’s defined variation provisions. The approach described in Yates (personal representative of the estate of Gladys May Dalton, deceased) v (1) Revenue & Customs Commissioners (2) Association of Personal Injury Lawyers [2014] EWHC 2311 (QB) was applied in explaining that urgency and proportionate case management are central features of the specialist list.
4. Procedure and proportionality. Although CPR 41.5(1) is permissive, a party contemplating a PPO should give clear notice sufficiently early to permit proper expert evidence and informed consideration by the opponent and court. The late introduction of the claim was inconsistent with the overriding objective. The proposed trust arrangement was not shown to be proportionate or cost-effective, particularly given the claimant’s very limited life expectancy and the defendant’s agreement in principle to fund treatment.
5. Order. The court declined to make a PPO and adjourned the claim for future immunotherapy costs. No specific further listing direction was made, since the parties should be able to agree a funding programme, with urgent interim payment applications available if necessary.

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