CWLX (a child proceeding by his father and Litigation Friend , SWSX) v Aneurin Bevan University Health Board

On an interim payment application, the court must identify a real, reasonable and immediate need for the payment and assess conservatively the expenditure reasonably necessary to meet it. An accommodation award requires a bottom-up assessment of reasonable housing needs, rather than a top-down assessment based on the likely final capital award. The court must avoid double counting and must not fetter the trial judge’s discretion. A high proportion of a conservative estimate may be awarded where justified. An award under the second stage of Eeles is available only where immediate needs cannot adequately be met under the first stage, but may draw on future losses likely to be capitalised at trial.

The claimant, a child with severe developmental, behavioural and care needs, brought an admitted-liability clinical negligence claim. Judgment had previously been entered for 85% of damages, and interim payments totalling £200,000 had been made voluntarily. The claimant sought a further interim payment to fund an adapted permanent home, past losses, immediate care and other expenses before the quantum trial.

The application required the court to determine the reasonable cost of accommodation, the extent to which future losses could be taken into account, and whether the proposed award would prejudice the trial judge’s assessment.

1. Application granted in part. The court ordered a total interim payment of £2,000,000, inclusive of the earlier £200,000 payment. The award was no more than a reasonable proportion of the likely lump-sum damages and was justified by a real and immediate need for suitable housing, paid care and other urgent expenditure.
2. Applying the Eeles framework, the court adopted a bottom-up approach. It assessed the reasonable accommodation needs conservatively, rather than starting with the likely overall capital award. The court was not required to approve a particular property and did not determine the final accommodation issue.
3. The evidence supported a single-level property with adequate space, secure external areas, suitable facilities and sufficient accommodation for carers. A conservative property value of £900,000 was allowed. Adaptations and associated costs were assessed at reduced figures because the final property had not been selected and the competing expert evidence differed substantially.
4. The court included reasonable costs incurred or expected before trial, including past gratuitous care, the introduction of paid care, case-management and other immediate needs. It excluded interest on sums awarded before they were incurred and avoided allocating the same funds twice.
5. The court accepted that an Eeles 2 award could be made if the immediate needs could not be met under Eeles 1. Future losses likely to be capitalised could provide the necessary top-up, without identifying particular heads of loss where both parties accepted that sufficient capitalisation was likely. Ultimately, the Eeles 1 calculation was sufficient.
6. The assessments were interlocutory and did not fetter the trial judge, who would decide the final losses on the complete evidence. The court allowed 90% of its conservative valuation, reflecting the requirement to award no more than a reasonable proportion.