PAL (A Child) v Davison & Ors

When assessing an interim payment in a serious personal injury claim, the court must estimate the likely capital element of the final judgment conservatively and avoid prejudicing the trial judge’s freedom to make a periodical payments order. The court may include accommodation costs where that is established practice, but should not allocate sums needed for other pre-trial care and rehabilitation to an accommodation payment if this would make those funds unavailable later. At the second stage of Eeles v Cobham Hire Services Ltd, the court may include future loss where there is a real and urgent present need, the proposed expenditure is reasonably necessary, and that conclusion is reached with a high degree of confidence. The court need not decide the ultimate suitability of the particular property or the final damages position.

The claimant, a 13-year-old child, suffered catastrophic injuries, including severe brain injury, when a vehicle mounted the pavement. Liability was not in issue and judgment for damages to be assessed had been entered against the driver. The claimant had already received £1,025,000 in interim payments and applied for a further £2 million to purchase, adapt and move into suitable accommodation before trial.

The existing rented property was unsuitable and could not be retained beyond a further limited period. The defendants accepted the need for permanent accommodation but offered £1.25 million. The central issue was the appropriate amount of the further interim payment under the approach in Eeles v Cobham Hire Services Ltd.

1. The court ordered a further interim payment of £2 million. The conditions in r.25.7 of the Civil Procedure Rules were satisfied, and the dispute concerned only the amount.

2. Under stage 1 of Eeles v Cobham Hire Services Ltd, the court must make a conservative assessment of the likely capital element of the final judgment. The assessment ordinarily includes general damages, special damages to date, interest and, where appropriate, capitalised accommodation costs. The objective is to avoid overpayment while preserving the trial judge’s freedom to allocate future loss, including by periodical payments order.

3. The starting point is that special damages are assessed to date. Future expenditure may be included where, in the circumstances, it is sufficiently predictable that it will form part of the likely lump-sum award. The court must balance the risk of overpayment against the need to avoid keeping the claimant out of money or requiring unnecessarily frequent applications.

4. On this application, the court excluded anticipated care, therapy and other pre-trial costs from the stage 1 calculation. Allocating those sums to accommodation would risk spending the same funds twice and would prejudice later applications for the claimant’s continuing needs.

5. At stage 2, future loss may be included where the evidence establishes a real and urgent present need, the proposed expenditure is reasonably necessary, and the court can predict with a high degree of confidence that the trial judge will make a sufficiently large capital award. The court need not determine whether the particular property is ultimately suitable, but must decide whether expenditure of approximately the proposed amount is reasonably required.

6. The evidence established an urgent need for suitable accommodation, no viable cheaper alternative was currently available, and the identified property was the only available option meeting the claimant’s needs. The court therefore found, to a high degree of confidence, that expenditure of approximately £2 million was reasonably required. It declined to exercise Court of Protection jurisdiction to authorise the purchase, maintaining the separation of responsibilities identified in Eeles v Cobham Hire Services Ltd.

First-instance interim payment application in the High Court. No prior appellate decision is stated in the judgment.