Iris Benford (a child represented by her mother Sarah Arnold as litigation friend) v East and North Hertfordshire NHS Trust

In a serious child brain-injury claim, uncertainty in forecasting future loss does not ordinarily justify postponing a quantum trial. Courts must make the best assessment reasonably possible using expert evidence, allowing for uncertainty through probability discounts, contingencies and step changes where appropriate. The relevant considerations on an adjournment application include the balance of prejudice, finality, delay, the parties’ conduct, compliance with directions, agreed trial choices, court resources, the wishes of caring parents and available procedural alternatives. An agreed trial date should generally be respected. The fact that a child is young, or that further evidence might improve prognostic accuracy, is insufficient by itself to establish that a fair trial is impossible.

Liability was admitted in a clinical-negligence claim arising from severe brain damage suffered at birth. Quantum remained to be determined at a five-day trial listed for May 2023. The Defendant had not served its counter-schedule or expert reports by the ordered date and applied to vacate the trial, stay the claim for four years and convene a further case-management hearing. It argued that the Claimant’s young age and uncertainties concerning epilepsy, cognition, communication, feeding, mobility, capacity and life expectancy made a fair assessment of future loss impossible or excessively speculative.

The Claimant opposed the application, relying on the parties’ agreed directions, the availability of further investigations before trial and the ordinary uncertainty inherent in all assessments of future loss. The central issue was whether the May 2023 quantum trial should be adjourned.

1. Application dismissed. The May 2023 trial was to remain in place. The Court extended the time for service of the Defendant’s expert reports and counter-schedule to 14 January 2023, directed the parties to agree further directions and ordered the Defendant to pay the costs of the application.
2. The power to adjourn or stay arose under CPR rule 3.1(2)(b) and (f). The Court identified the relevant factors as the overriding objective, prejudice if the trial proceeded or were adjourned, the balance of prejudice, finality, delay, the parties’ conduct and compliance with directions, choices reflected in consent orders, court resources, the wishes of the parents and alternatives to adjournment.
3. Future-loss assessment is necessarily predictive. A judge must compare the likely “but for” position with the future actual position and make the best estimate possible with expert assistance. Uncertainty may disadvantage the claimant because the burden of proof lies on her, but it can be addressed through probability discounts or staged changes in the award. It does not, without more, make a fair trial impossible.
4. The Defendant’s evidence did not establish substantial forensic prejudice. Several experts had provided, or could provide, ranges of opinion. Further investigations concerning epilepsy, swallowing and hearing were available or imminent. Some requests for delay rested principally on the Claimant’s age, which was not sufficient to displace the agreed trial timetable.
5. The parties had agreed the trial date and directions in September 2021. The Defendant’s concerns could have been raised earlier, particularly when its experts were expected to report. The Claimant had complied with the extensions granted by consent. Finality, avoidance of unreasonable delay, court resources and the litigation friend’s wish to end the continuing assessment process all supported retaining the trial date.