Folkes & Ors v Generali Assurances

For an interim payment, the court applies the procedural law of the forum, even where the substantive claim is governed by foreign law. The applicant must satisfy a condition in CPR r.25.7, but that does not remove the court’s discretion.

The payment must not exceed a reasonable proportion of the likely final judgment. Because liability has not been finally established and evidence may be incomplete, the assessment must be cautious and must avoid turning the application into a mini-trial. The court may take account of an irreducible minimum part of the claim and make conservative assumptions, but disputed heads of loss should generally be left for trial.

The first claimant suffered very severe brain injuries in a road traffic accident in France. The defendant, the driver’s insurer, admitted liability to him. French law governed liability and recoverable damages under the Rome II Regulation, while English law governed evidence, procedure and the application for an interim payment.

The claimant sought a further payment of £240,000 to continue an independent-living rehabilitation trial with substantial care support. The defendant disputed the likely recoverability and amount of several heads of loss, including future care, accommodation and permanent disability. The central issue was whether the statutory and procedural conditions for an interim payment were met and, if so, whether the proposed payment represented a reasonable proportion of the likely capital award.

1. Application refused. The defendant had admitted liability to the first claimant, so the condition in CPR r.25.7(1)(a) was satisfied. The court nevertheless retained a discretion whether to order payment.
2. Questions concerning an interim payment were matters of English procedure under the Rome II Regulation. The applicable foreign law determined liability and recoverable damage, but the forum’s law determined evidence, procedure and the court’s power to order an interim payment. The approach in Marshall (deceased) v Motor Insurers’ Bureau [2015] EWHC 3421 (QB) was followed on the distinction between the applicable law’s burden of proof and the forum’s standard of proof.
3. The court applied CPR r.25.7(4). It had to assess the likely final judgment and ensure that the total interim payments did not exceed a reasonable proportion of it. A cautious approach was particularly appropriate because the final damages would be assessed by reference to French principles and the evidence concerning prognosis and future care remained incomplete.
4. The application was not suitable for resolving disputed expert issues or becoming a mini-trial. The court assumed that the first three or four months of independent living with 24-hour support were likely to form part of the final award. It could not, on the evidence then available, say with sufficient confidence that longer independent living or 24-hour care would be recoverable. The choice of the two-bedroom flat was, however, reasonably connected with the claimant’s injuries and rehabilitation needs.
5. Following the guidance in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204, the court assessed the likely capital sum and excluded sums likely to be awarded by periodical payments. On conservative assumptions, the likely capital award was about £370,378, substantially below the approximately £660,000 required to justify the interim payments already made and the further sum sought. The application was therefore refused.