XS1 (A Child Proceeding by her Mother and Litigation Friend XS2) v West Hertfordshire Hospitals NHS Trust

An interim payment must not exceed a reasonable proportion of the likely final judgment. The assessment should be conservative, but a high proportion of that conservative figure may be awarded where appropriate.

At the first stage of Eeles, the court ordinarily considers heads of loss that the trial judge must award as capital, including general damages, past losses and accommodation costs. Future losses which may be dealt with by a periodical payment order are generally excluded.

At the second stage, future losses may be included only where there is a high degree of confidence that they will be awarded as capital, a real need for the requested accommodation before trial, and a reasonable amount. Desire to secure a preferred property is insufficient.

The claimant, a child with severe cerebral palsy and associated disabilities, applied for an urgent interim payment to assist with the purchase and adaptation of alternative accommodation. Liability had been compromised at 70% in the claimant’s favour, and substantial interim payments had already been made.

The defendant opposed the application and argued that the evidence did not establish either a sufficient conservative valuation under the first stage of Eeles or a real need for accommodation before trial under its second stage. The court considered the adequacy of the parties’ evidence, the accommodation claim, past losses and the effect of the partial liability finding.

The central issue was whether the threshold for including future losses in an interim payment calculation, and particularly whether there was a real need for alternative accommodation before trial, had been met.

1. Application refused at the present hearing. The court could not make a sufficiently reliable assessment of the relevant heads of loss and was not satisfied that the established Eeles stage-two requirement of a real need for alternative accommodation before trial had been met. The application could be restored at an early return date if the claimant wished to provide the missing information.
2. Under CPR 25.7(4), an interim payment must not exceed a reasonable proportion of the likely final judgment. The court should adopt a conservative valuation, while recognising that the reasonable proportion may be high. The purpose is to avoid withholding money to which the claimant is likely entitled while guarding against overpayment.
3. At stage one of Eeles, the court should assess heads of loss which the trial judge is bound to award as capital, including general damages, past losses and accommodation costs. It must avoid fettering the trial judge’s choice between a capital award and periodical payments, and should avoid creating an unlevel playing field.
4. At stage two, future losses may be included only where the court has a high degree of confidence that the trial judge will award them as capital and there is a real need for the requested accommodation now, rather than merely a desirable opportunity. The amount requested must also be reasonable. The scarcity of suitable properties is relevant but not determinative.
5. The court accepted that partial liability may make a trial judge more likely to award additional heads of future loss as capital, because the claimant will have to manage a shortfall. That observation did not remove the need for reliable evidence concerning the accommodation valuation, life expectancy, expenditure to trial and the remaining balance of earlier interim payments.
6. The evidence disclosed significant uncertainty, including errors in the accommodation calculations, possible overlap in rental and adaptation claims, uncertainty about past care and other expenditure, and no adequate account of sums remaining from earlier interim payments. The court therefore could not determine a reasonable conservative accommodation figure or the overall reasonable proportion.