Lexi-Rae Speirs v St Georges University Hospitals NHS Foundation Trust

Interim payment applications in substantial personal injury claims must be assessed conservatively and by reference to the likely capital judgment. The court must preserve the trial judge’s freedom to determine whether future losses should be met by a lump sum or periodical payments.

At the first stage, the court considers sums that the trial judge is bound to award as capital, including pain, suffering and loss of amenity, past losses and interest. A further payment may be justified only where there is a real present need and the court can confidently predict that a future head of loss will be capitalised. The assessment must also account for liability apportionment and the risk of overpayment.

The claimant sought a further interim payment of £219,380 in a long-running clinical negligence claim arising from injuries sustained during her birth. Liability had previously been apportioned 50%, and interim payments totalling £340,000 had already been made.

The claimant was sixteen and required accommodation, therapy and care. The issue was whether the evidence established the amount reasonably required before trial and whether a future head of loss could confidently be expected to be awarded as a capital sum under the two-stage approach in Eeles.

1. Application granted in part. A further interim payment of £99,196 was ordered. The requested sum of £219,380 was not justified.
2. The timetable in Civil Procedure Rules 1998, r 25.6 for evidence on interim payment applications must be followed. In complex cases the parties may agree suitable extensions so that the application can be considered fairly. The late evidence was admitted because the claimant declined an adjournment and agreed that it should be considered.
3. The applicable approach was that stated in Eeles v Cobham Hire Services Ltd [2010] 1 WLR 409, as summarised in Smith v Bailey [2015] PIQR P3. The assessment must be conservative. The likely final judgment means the capital sum, not the capitalised value of a periodical payment order. The court must avoid fettering the trial judge’s discretion.
4. The first-stage assessment produced £332,450 after taking account of the 50% liability reduction. That amount was slightly below the interim payments already made. The court accepted the defendant’s conservative valuation of general damages and past losses and found a high degree of confidence that those sums would be recovered.
5. The claimant nevertheless demonstrated a real need for further funds for accommodation, therapy and care to trial. The court allowed £99,196 for those needs. The accommodation claim was allowed for present funding purposes despite uncertainty about recovery at trial; therapy, paid care and gratuitous care were allowed at the defendant’s more conservative figures.
6. The only realistic future head capable of supporting a further payment was loss of earnings. Although the full claim was £928,661 and involved favourable assumptions, a conservative valuation of £500,000 was supportable. After the 50% liability reduction, sufficient capital would remain to justify the payment.
7. Under section 4 of the Mental Capacity Act 2005, the Deputy must act in the protected party’s best interests and should record spending decisions having regard to likely recovery. The judgment was directed to be provided to the Deputy. A further interim payment was described as extremely unlikely.