Duffy v Centraal Beheer Achmea

For an interim payment in a claim governed by foreign substantive law, the application remains procedural and is determined under English law. The court must assess the likely final damages by applying the foreign law governing liability and damages.

At the first stage of the Eeles v Cobham Hire Services Ltd approach, the assessment must be conservative. It should include capital damages which the trial judge is bound to award, together with past losses and interest, but ordinarily exclude future losses which may be dealt with by periodical payments. The award must be a reasonable proportion of that assessment and must not fetter the trial judge’s discretion or create an unlevel playing field.

The claimant was injured as a pedestrian in Amsterdam. Liability was admitted, and Dutch law governed the tort claim. The English court retained jurisdiction and dealt with the application under English procedural law.

The claimant sought a further interim payment before trial, relying on the anticipated costs of an elective below-knee amputation, rehabilitation, care, equipment, adaptations, transport and loss of earnings. The central issue was the proper conservative assessment of likely damages under Dutch law for the purposes of an English interim-payment application.

1. Applicable law. Dutch law governed limitation, breach, causation and the existence, nature and assessment of damages under Article 41(1) of the Rome II Regulation. Matters of procedure and evidence remained governed by the forum, so the interim-payment application was governed by English law.
2. Applicable interim-payment principles. The court applied the Stage 1 approach stated in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204, as summarised in Smith v Bailey [2014] EWHC 2569. The assessment had to be conservative and based on a reasonable proportion of the likely capital judgment. It included general damages, past losses calculated to the likely trial date, and interest. Future losses were excluded where the trial judge might award periodical payments, unless there was a high degree of confidence that they would be awarded as capital and a real need for early payment.
3. The court had to preserve the trial judge’s freedom to decide between a capital award and periodical payments. The proposed use of the interim payment could be relevant if it risked creating an unlevel playing field, but that consideration was not conclusive: Campbell v Mylchreest [1999] PIQR Q17.
4. The court adopted a cautious assessment of each head of loss, including the likely costs of surgery, prostheses, adaptations, equipment, care, services, therapy, transport and earnings. It used the available evidence despite the absence of a meaningful valuation table, a difficulty considered in light of Grainger v Cooper [2015] EWHC 1132.
5. The likely damages were assessed at £262,070.87. Applying 90 per cent and deducting £120,210.37 previously received, the further interim payment was rounded to £116,000. The application was granted in that sum.

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