Rachel Jane Cripps (Also known as Snudden) v Norfolk and Norwich University Hospitals NHS Foundation Trust

On an interim-payment application, the court must assess the likely final judgment conservatively and avoid overpayment or interference with the trial judge’s allocation of damages. Future losses may be included only where the court can predict with a high degree of confidence that the trial judge will award them and where the proposed expenditure is reasonably necessary.

Where the proposed payment depends on damages for foreign commercial surrogacy, the court must consider the three conditions identified in XX v Whittington Hospital NHS Trust: the treatment programme, the choice of foreign rather than UK arrangements, and the costs must each be reasonable. Substantial factual and expert disputes, incomplete evidence and uncertainty about the proposed arrangement may prevent the necessary confident prediction. The application was therefore refused.

The claimant suffered loss of fertility following the defendant’s admitted clinical negligence. The defendant accepted liability and had made interim payments, but disputed whether the claimant could recover the costs of a commercial surrogacy arrangement in the USA.

The claimant sought a further interim payment of £275,821.71 to begin the first proposed arrangement. The court considered the principles governing interim payments, the Supreme Court’s decision in XX v Whittington Hospital NHS Trust, and evidence concerning UK and US surrogacy, timing, legal certainty and cost.

The central issue was whether the court could say with a high degree of confidence that a future trial judge would find the proposed foreign commercial surrogacy arrangement reasonable and would award damages on that basis.

1. Interim-payment principles. Under Civil Procedure Rules 1998, rule 25.7(4), the payment sought had to be a reasonable proportion of the likely final judgment. Applying Eeles v Cobham Hire Services Ltd, the court had to make a conservative assessment while avoiding overpayment and preserving the trial judge’s freedom to determine the final award, including any periodical payments order.
2. At the second stage of Eeles, future losses could be included only where the court could confidently predict that the trial judge would award the relevant capital sum. The court also had to be satisfied that there was a real need for the payment and that expenditure of approximately the proposed amount was reasonably necessary.
3. Surrogacy damages. The court applied the principles in XX v Whittington Hospital NHS Trust. The relevant inquiry was whether the proposed programme was reasonable, whether foreign commercial arrangements were reasonably preferable to arrangements in the UK, and whether the proposed costs were reasonable.
4. The court could not confidently predict the future trial determination. The evidence was incomplete; the precise US arrangement and state had not been identified; detailed enquiries about UK arrangements had not been made; the schedule of loss was not fully particularised; and the parties disagreed about timing, legal certainty, comparative systems and costs. These matters could materially affect the application of the three-stage test and the form of any final award.
5. The level-playing-field argument was not an absolute bar to an interim payment, but the possibility that the payment might prejudice the defendant was a relevant consideration. The court declined to usurp the role of the trial judge and refused the application under rule 25.7.