Louise Hill v East Kent Hospitals University NHS Foundation Trust

On an application for an interim payment after judgment for damages to be assessed, the court must estimate the likely capital element of the final judgment on a conservative basis. The assessment must preserve the trial judge’s freedom to decide whether future losses should be met by a periodical payment order and must avoid creating an unlevel playing field. Future special damages may be included where they can confidently be assessed as part of the lump sum. The court must not conduct a mini-trial. A high proportion may be reasonable where the underlying valuation is cautious.

The claimant, who lacked capacity, brought a personal injury claim arising from admitted clinical negligence causing severe neurological injury. Judgment had been entered for damages to be assessed, and she sought a further interim payment of £500,000 to support a move from residential care to an adapted property.

The parties advanced different provisional valuations. The issues included the likely capital amount of the final judgment, appropriate conservative discounts, accommodation costs in a short-life-expectancy case, and the reasonable proportion that could safely be paid before trial.

1. Application granted in part. Applying CPR Part 25 and limb one of Eeles v Cobham Hire Services (2009) EWCA Civ 204, the court assessed the likely capital element of final judgment conservatively at £2,132,409. Ninety per cent, £1,919,168.10, was a reasonable proportion. After crediting previous interim payments of £1,566,000, the further interim payment was £353,168.
2. The first-stage assessment concerned sums likely to form part of a capital award. Future losses capable of being confidently assessed as accruing before trial could be included, but the court had to avoid prejudging the trial judge’s choice of a periodical payment order or establishing a status quo that fettered that discretion. The principles distilled in XSI (A Child Proceeding by her Mother and Litigation Friend XS2) v West Hertfordshire Hospitals NHS Trust [2024] EWHC 1865, drawing on AC v St Georges Healthcare NHS Trust [2015] EWHC 3644 (QB), were applied.
3. The court adopted conservative figures where evidence was limited or heads of loss were disputed. It declined to allow anything for administrative assistance because the issue depended on disputed evidence requiring detailed evaluation at trial. It allowed discounted sums for care, case management, travel, therapies, medical investigations, accommodation, equipment, miscellaneous expenses and deputyship costs.
4. The court did not finally resolve the correct application of Swift v Carpenter [2020] EWCA Civ 1295 to accommodation claims where life expectancy was materially shorter than the paradigm case. The guidance remained relevant, but fuller argument and evidence were required. The accommodation claim was therefore assessed conservatively at £700,000.