CXS v Maidstone and Tunbridge Wells NHS Trust

On an interim payment on account of costs, the court should order a reasonable sum, representing an estimate of the likely recovery on detailed assessment, with an appropriate margin for uncertainty. It should consider all relevant circumstances, including the likely recoverability of the costs, recovery risks, appeal prospects, the parties’ means, the imminence of assessment and possible overpayment.

Children’s claims are generally excluded from costs management because prognosis and the scope of future work may remain uncertain for many years. A costs management order may nevertheless be made where appropriate, but it should not be imposed where reliable assumptions cannot sensibly be made. Detailed assessment provides protection against excessive costs.

The claimant, a child who sustained a hypoxic-ischaemic brain injury resulting in cerebral palsy, brought a clinical negligence claim against the defendant NHS trust. Liability had been admitted and judgment entered for damages to be assessed.

The claim was stayed until September 2027 because the claimant’s prognosis and future needs remained uncertain. At a case management conference, the claimant sought a further interim payment on account of costs. The defendant sought a costs management order for the period of the stay.

The central issues were whether costs management should be imposed in a child’s complex personal injury claim during a lengthy stay and, if not, what further sum constituted a reasonable interim payment on account of costs.

1. Interim payment principles. The court had jurisdiction to make a costs order down to the date of the application and to order a payment on account. The relevant measure was a reasonable sum, not an irreducible minimum recoverable on detailed assessment. The court should estimate the likely level of recovery and allow an appropriate margin for error. A standard percentage reduction was not required.
2. In assessing the reasonable sum, the court should consider all relevant circumstances, including the likelihood that the costs claimed would be recovered in whole or in part, any difficulty in recovering them, the likelihood of an appeal, the parties’ means, the imminence of detailed assessment, relevant delay and the possibility of recovering any overpayment.
3. Costs management. Although the court had power under CPR 3.13 to bring a child’s claim within costs management, the ordinary exclusion of claims by or on behalf of children reflected sound policy. Such claims may take many years to reach trial, and injuries may take years to stabilise before prognosis and appropriate directions can be determined.
4. A costs management order limited to the period of the stay was inappropriate. The case involved substantial complexity and unknowns, and there was insufficient certainty to make sensible assumptions about the work required during the stay. An inaccurate or artificially high budget could generate further cost and applications to vary it. The defendant’s concerns were adequately addressed by detailed assessment under CPR 46.4(2)(b).
5. The claimant was entitled to a further payment on account. The incurred costs were high and raised issues for later detailed assessment, but the complexity of the claim and work undertaken were accepted to be substantial. A further payment of £80,000 was ordered, bringing total interim payments on account of costs to £560,000. Counsel were directed to draw the appropriate order, and the parties were invited to produce costs estimates before the next CMC in September 2027.