AC (a minor suing by his litigation friend MC) v St. Georges Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 15 December 2015 |
| Neutral Citation | [2015] EWHC 3644 (QB) |
| Docket Number | Case No: HQ13X03521 |
| Court | Queen's Bench Division |
| Date | 15 December 2015 |
[2015] EWHC 3644 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple
Case No: HQ13X03521
Simeon Maskrey QC and Deidre Goodwin (instructed by Express Solicitors) for the Claimant
Martin Spencer QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 9 December 2015
Introduction
This is an application for an interim payment in a clinical negligence case. It is brought under CPR 25.7(4).
The background to the application is this: AC sues by his father and litigation friend for damages for injuries sustained at birth on 21 April 2008, as a result of negligence by the treating doctors and midwives at St George's Healthcare NHS Trust. Liability has been admitted, judgment has been entered, and the matter will proceed to an assessment of damages. The Claimant is now only 7. It is too early for a final prognosis to be given, or for the claim to be quantified. The Claimant seeks damages on account, by way of interim payment, to fund expenses in the period between now and trial.
Before dealing with the Claimant's application for interim payment, I address the Claimant's application for an anonymity order. The relevant legal principles have recently been set out by the Court of Appeal in JXMX v Dartford and Gravesham NHS Trust [2015] 1 WLR 364. This is an appropriate case in which to make such an order, given the Claimant's age, his right to privacy, the fact that the details of his personal life, medical treatment and prognosis are at the centre of this litigation, and the fact that he stands to be awarded substantial damages in compensation. I make the anonymity order and the Claimant will be referred to as AC, and his litigation friend will be referred to as MC.
The Claimant applies for an interim payment in the amount of £1,203,300. The main reason for seeking such a payment is to enable the Claimant and his family to be re-housed in suitable accommodation. They live in south west London, where the cost of housing is high, so the capital amount sought to fund the purchase is substantial. They also wish to purchase care and psychological support to facilitate a programme of behavioural management to address aspects of the Claimant's behaviour, in advance of trial.
The date for trial is likely to be some time in 2018. The parties have slightly different views as to whether trial should take place at the beginning of 2018 (Defendant) or the spring of 2018 (Claimant), but the difference is not substantial and for present purposes I assume trial will be roughly 2.5 years from now.
Legal Principles
The relevant principles to guide the award of interim payments in damages claims such as this are set out in Eeles v Cobham Hire Services Ltd [2010] 1 WLR 409. I am satisfied that this is a case where the trial judge is likely to wish to make a periodical payments order in relation to some heads of future loss. The Claimant has a long life expectancy and will have care needs throughout his life. I anticipate that future care and case management, at least, will be met by a PPO when damages are assessed. The trial judge may choose to subject other future heads of loss to PPOs also. Accordingly, the guidance in Eeles applies.
Popplewell J provided a useful summary of the principles in Smith v Bailey [2014] EWHC 2569 (QB) at paragraph 19:
"19. It is convenient to set out the principles which I take to be established by Eeles and the previous authorities which it sought to summarise:
(1) CPR r. 25.7(4) places a cap on the maximum amount which it is open to the Court to order by way of interim payment, being no more than a reasonable proportion of the likely amount of the final judgment (at [30]).
(2) In determining the likely amount of the final judgment, the Court should make its assessment on a conservative basis; having done so, the reasonable proportion awarded may be a high proportion of that figure (at [37], [43]).
(3) This reflects the objective of an award of an interim payment, which is to ensure that the claimant is not kept out of money to which he is entitled, whilst avoiding any risk of an overpayment (at [43]).
(4) The likely amount of a final judgment is that which will be awarded as a capital sum, not the capitalised value of a periodical payment order ("PPO") (at [31]).
(5) The Court must be careful not to fetter the discretion of the trial judge to deal with future losses by way of periodical payments rather than a capital award (at [32]).
(6) The Court must also be careful not to establish a status quo in the claimant's way of life which might have the effect of inhibiting the trial judge's freedom of decision, a danger described in Campbell v Mylchreest as creating "an unlevel playing field" (at [4], [39]).
(7) Accordingly the first stage is to make the assessment in relation to heads of loss which the trial judge is bound to award as a capital sum (at [36], [43]), leaving out of account heads of future loss which the trial judge might wish to deal with by a PPO. These are, strictly speaking (at [43]):
(a) general damages for pain, suffering and loss of amenity;
(b) past losses (taken at the predicted date of the trial rather than the interim payment hearing);
(c) interest on these sums.
(8) For this part of the process the Court need not normally have regard to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection (at [44]). Nevertheless if the use to which the interim payment is to be put would or might have the effect of inhibiting the trial judge's freedom of decision by creating an unlevel playing field, that remains a relevant consideration (at [4]). It is not, however, a conclusive consideration: it is a factor in the discretion, and may be outweighed by the consideration that the Claimant is free to spend his damages awarded at trial as he wishes, and the amount here being considered is simply payment at the earliest reasonable opportunity of damages to which the Claimant is entitled: Campbell v Mylchreest [1999] P.I.Q.R. Q17.
(9) The Court may in addition include elements of future loss in its assessment of the likely amount of the final judgment if but only if (a) it has a high degree of confidence that the trial judge will award them by way of a capital sum, and (b) there is a real need for the interim payment requested in advance of trial (para 38, 45).
(10) Accommodation costs are "usually" to be included within the assessment at stage one because it is "very common indeed" for accommodation costs to be awarded as a lump sum, even including those elements which relate to future running costs (at [36], [43])."
The first stage referred to, encapsulating paragraphs (1) to (8) above, is "Eeles 1". Paragraphs (9) and (10) reflect the second stage, or " Eeles 2".
Claimant's Condition and Prognosis
The Claimant's injuries and resulting problems are conveniently summarised in the report of Dr Rosenbloom, paediatric neurologist instructed by the Defendant, dated October 2015. I do not understand Dr Rosenbloom's report to be disputed, at least in its generality, although there may be points of detail in issue (if there are, they are not important for this application and can be resolved at trial).
Dr Rosenbloom examined the Claimant on April 2013 and August 2015. He describes the Claimant as suffering bilateral cerebral palsy with evidence of extrapyramidal motor dysfunction (the extrapyramidal motor system is concerned with stabilising posture and facilitating and smoothing voluntary movement). Dr Rosenbloom identifies deficits suffered by the Claimant in gross motor function, fine motor function, oromotor function, social cognitive and communication abilities, and personal care abilities. The Claimant also has an interrupted sleep pattern and behaviour problems. He has significant developmental problems and cognitive deficit. He has a statement of special educational needs and attends a special needs school in south London.
As to the future, Dr Rosenbloom says the Claimant will be able to walk independently throughout life, but will not be freely mobile. He will require a wheelchair for outside use, but will not be capable of using a powered wheelchair unless fully supervised given his cognitive deficit.
At this point I note that the Claimant, despite having some motor problems, is not so badly injured as some claimants in other reported cases, whose mobility has been significantly impaired, and who in consequence require extensive adaptation of their accommodation by installation of hoists and wheelchair access, and so on. (See, as an example, Aiden Oxborrow v West Suffolk Hospitals NHS Trust [2012] EWHC 1010 (QB); but contrast Eeles, where the Claimant had problems which in many respects were similar to this Claimant's.) This is a point made by the Defendant, in resisting this application, and I shall return to it.
According to Dr Rosenbloom, there is no prospect that the Claimant will ever have capacity, or be able to live independently. He will be incapable of paid work. He will be unable to marry or have any similar social relationship, or become a parent. He will always require care, including care at night time (although it is hoped that the night time care would be on a sleeping rather than waking basis).
As to accommodation, Dr Rosenbloom said that he will be: "vulnerable to falling and will never...
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