HDL v Waseem Butt & Anor

An interim payment must be limited to a reasonable proportion of the sum which the claimant is likely to recover at trial. The court must avoid any risk of overpayment. Where there is a genuine and substantive dispute about causation affecting the value of the claim, the court should not conduct a mini-trial or assume that the claimant will succeed on the disputed issue. Any genuine doubt about recovery of a claimed element prevents that element from being included in the interim assessment. The fact that refusal may disrupt care or accommodation does not, by itself, justify an interim order.

The claimant, a young child who suffered a severe traumatic brain injury in a road traffic accident, sought a further interim payment of £225,000. Judgment on liability had been entered by consent, with damages to be assessed, and substantial voluntary interim payments had already been made.

The defendants disputed the causation and value of the claimant’s ongoing and future symptoms, relying on genetic evidence concerning a 22q11.2 duplication. The claimant relied on competing expert evidence attributing most of the problems to the brain injury. The issue was whether the conditions for a further interim payment were satisfied while that causation dispute remained unresolved.

1. Disposition. The application for a further interim payment of £225,000 was dismissed. An urgent preliminary issue hearing on causation was directed.
2. The power to order an interim payment is discretionary but must be exercised in accordance with the Civil Procedure Rules 1998 and the relevant authorities. The court had jurisdiction under CPR 25.23(b), but the payment remained subject to the requirement in CPR 25.20 that it be no more than a reasonable proportion of the likely final judgment.
3. The relevant assessment excludes future losses likely to be dealt with by a periodical payments order, although appropriate accommodation costs may ordinarily be included in the capital assessment. The assessment must be conservative. The objective is to avoid any risk of overpayment.
4. The court should not embark on a mini-trial of issues properly reserved for the trial judge. Where causation is genuinely and substantially disputed, the court cannot assume that the claimant will succeed on that issue when assessing the likely final judgment. Only sums which the trial judge is bound, on the balance of probabilities, to award may be included.
5. The approach in Farrington v Menzies-Haines [2019] EWHC 1297 was applied. The defendants had produced substantive expert evidence, the claimant’s evidence remained preliminary and contested, and important evidence and expert discussions were outstanding. The case was distinguished from Sellar-Elliot v Howling [2016] EWHC 443, where the defendant had filed no substantive expert causation evidence in response to compelling evidence.
6. Although liability was established and some recovery was certain, the court could not be satisfied that the claimant would recover the claimed £15–20 million or the proposed capital sum. Existing payments might already exceed recoverable damages if the defendants’ causation case succeeded. The difficulties caused by refusing further payment could not justify an order on their own.