Bayley Porter (by her mother and litigation friend Kelly Porter) v Barts Health NHS Trust
| Jurisdiction | England & Wales |
| Judge | Curran |
| Judgment Date | 18 December 2017 |
| Neutral Citation | [2017] EWHC 3205 (QB) |
| Docket Number | Case No: HQ13X04824 |
| Court | Queen's Bench Division |
| Date | 18 December 2017 |
[2017] EWHC 3205 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Curran QC
(Sitting as a High Court Judge)
Case No: HQ13X04824
Dr Simon Fox QC (instructed by Hudgell Solicitors) for the Claimant
Mr Nicholas Peacock (instructed by Kennedys) for the Defendant
Hearing dates: 11 th October 2017
Judgment Approved
His Honour Judge Curran QC:
Introduction
This is a clinical negligence case. The child claimant, Miss Bayley Porter ("Bayley"), is now aged 12. At her birth on 7 May 2005 she sustained a hypoxic brain injury, as a result of which she now suffers from quadriplegic cerebral palsy and microcephaly. Bayley is thus very severely disabled, with limited mobility, and requires a wheelchair to move around. She has significant cognitive impairment.
By an order dated 30 November 2015 judgment was entered against the defendant Trust, following a compromise of the proceedings under the terms of which it is liable to pay 80 per cent of the damages that would have been awarded upon the basis of full liability.
If all items claimed, in terms of general damages, interest, past and future loss are included, then the total for the claim, after applying the 20 per cent discount for settlement, is ?24,129,289, whereas the total suggested by the counter schedule is ?2,850,789 plus periodical payments.
On 17 December 2015 an interim award of ?500,000, inclusive of CRU, was made in the claimant's favour. Some of that money has been expended, but the court was informed that some ?298,000 remains unspent from that interim award.
The claimant's current accommodation and needs
Bayley is wholly reliant upon others, principally her devoted mother, a Mrs Kelly Porter, for all her needs. Mrs Porter has three other children: Cheyenne, 18, Honey, 10, and Rico, who is 2. The family live in a three-bedroom house rented from Thurrock Council. It is a small house with two storeys: there are three bedrooms which, together with the bathroom, are on the first floor. The staircase has no handrail or bannister.
The evidence from Mrs Porter in her witness statement is that the three bedrooms consist of two "average size" rooms and one box room. Mrs Porter used to sleep in one of the rooms in a double bed with her daughter Honey, and Cheyenne and Bayley in a double bed in the second bedroom. However, as Bayley is now 12, her size and weight are such that Mrs Porter cannot carry her up and down stairs on a regular basis. As a result, she now sleeps downstairs in the front room on a sofa, and Mrs Porter and Cheyenne take turns to sleep on the other sofa so that Bayley is not left on her own. This arrangement has meant, however, that it is difficult for Mrs Porter to manage to give Bayley a bath more frequently than on alternate days. Even so, Mrs Porter is suffering from strain to her back as a result of having to carry Bayley up and down the stairs.
Bayley uses a wheelchair for mobility but the house has insufficient space for her to move freely. The doors are not wide enough for an electric wheelchair to pass through. Moreover there are no facilities or room for Bayley to have any form of physiotherapy, with consequential adverse effects upon her legs in particular. At the front door of the house there is a steep step which may make it impossible for an electric wheelchair to be used on the drive.
It is common ground that the existing accommodation is inadequate.
The search for an alternative property
The evidence of the solicitor acting for the claimant, Kent Pattinson, in his witness statement dated 11 October 2017, is that the claimant's family have been involved in a search for a suitable alternative property for a long time. In November 2016 they decided to seek the assistance of a "professional property finder" and a company named PLG Consultants Ltd of 176 King St, London W6, were instructed to continue the search on behalf of the claimant and her family. One potential place was identified in April 2017, but this was discarded as a possibility as the surveyor instructed to inspect it raised considerable doubts over the possibility of obtaining the necessary planning permission for conversion. Nothing seems to have come of either of the properties which were identified as possible alternative houses by the parties' respective surveyors in their first reports.
Birch House
A large house has now been identified as available for conversion for Bayley's use and for the accommodation of the family and carers, with sufficient space for wheelchair access and internal use, and also for much-needed physiotherapy and similar activities. The house is called Birch House, in Tomswood Road, Chigwell IG7 5Q.
The reports of the surveyor, Mr David Reynolds, served on behalf of the claimant, confirm that the current premises are wholly unsuitable for Bayley's use, but that Birch House would, if converted and adapted as he recommends, satisfy all of the requirements in terms of suitability for Bayley's use that are set out at paragraph 9 of Mr Reynolds' second report, produced in September 2017.
The purchase price of Birch House is ?1,650,000. However, the further ?330,000 would be needed for the associated costs in terms of conversion works, adaptation, fittings, and purchase costs. In addition, as the quantum hearing in the case is listed in October 2018 there is a need for a further year's care and case management costs of approximately ?219,000.
The interim payment sought on behalf of the claimant
In those circumstances the court is requested to make a further interim award of ?1,900,000 to cover the claimant's needs to trial, since the ?298,000 referred to above, the unexpended part of the first interim payment, can be used to make up all but ?1,000 of the total required.
The point is made on behalf of the claimant that there is an urgent and pressing need for alternative premises to be purchased and converted, adapted, and equipped, as the present accommodation is neither suitable for the claimant's disability nor for the care which she requires. The evidence from Mrs Porter and from the claimant's grandparents show that there is really no doubt about the urgency involved. As leading counsel for the claimant put it, as each week passes in waiting to see if a less expensive property might be found Bayley's mobility continues to deteriorate, as there is literally insufficient space in her present home for her to be able to move, other than to crawl very short distances.
There is no issue between the parties that the requirements of CPR 25.6 are satisfied. There is however a significant issue over the amount.
The principles to be applied are those set out by the Court of Appeal in the well-known case of Eeles v Cobham Hire Services [2009] EWCA Civ 204. However, the starting point is to be found at CPR Part 25.7(4):
"… the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment".
Under Eeles 1 (see Smith LJ at paragraph 43 of her judgment) the court must assess the likely amount of the final judgment, leaving out of account those heads of future loss which the trial judge might wish to deal with by way of orders for periodical payments ("PPO".) It is important for the court to bear in mind that the claimant is not kept out of money to which she is entitled, but nevertheless to avoid the risk of an overpayment.
Moreover, in making the award, the court must be careful not to fetter the discretion of the trial judge by the premature making of an award that is so significant as to create "an unlevel playing field," nor one which impinges upon the judge's freedom to make a PPO in respect of any particular head of claim for future loss.
That said, claimants of full age and capacity may spend the money awarded as an interim payment as they wish. In the case of a claimant such as Bayley, the expenditure which it is proposed to make in respect of her future accommodation will be subject to the approval of the Court of Protection.
" Eeles 1"
The heads of claim to be assessed when considering the making of an interim award include general damages for pain, suffering and loss of amenity, special damages in terms of losses to date, and interest. The assessment should be carried out on a conservative basis. Provided that is done, a reasonable proportion may be a high proportion. Proportions as high as 90 per cent have been awarded in the past.
" Eeles 2"
Where, however, the interim payment requested exceeds a reasonable proportion of the likely award thus assessed, recourse may be had to the second stage: Eeles 2. Under this stage, the court may include in the assessment of the likely amount of a final judgment the capitalised amounts of future losses. However, a judge can only do this if he or she "can confidently predict that the trial judge will wish to award a larger capital sum than that covered by" the items falling within Eeles 1 – see paragraph 45 of the judgment of Smith LJ.
The court must be satisfied by evidence that there is a real need for the interim payment requested. As Smith LJ pointed out (see para 45):
"For example, where the request is for money to buy a house, [the court] must be satisfied that there is a real need for accommodation now as opposed to after the trial and that the amount of money requested is reasonable. [The court] does not need to decide whether the particular house proposed is suitable, that is a matter for the Court of Protection, but the judge must not make an interim payment order without first deciding whether the expenditure of...
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