Celine Martin (formerly known as Vicky Kathleen Higgins) v Salford Royal NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Bird |
| Judgment Date | 11 March 2022 |
| Neutral Citation | [2022] EWHC 532 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: D90MA092 |
[2022] EWHC 532 (QB)
His Honour Judge Bird sitting as a Judge of this Court
Case No: D90MA092
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
The Civil Justice Centre,
Bridge Street West,
Manchester
Mary Ruck (instructed by Slater and Gordon UK Limited) for the Claimant
Charles Feeny (instructed by Hill Dickinson) for the Defendant
Hearing dates: 12,13,14 January 2022 & 11 March 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This hearing follows my assessment of damages in this case. I am to determine how the damages are to be paid: by a lump sum order or by a periodical payments order and if periodical payments are appropriate whether that order should be variable. I am also to determine (after allowing permission to amend the original claim at the end of the quantum trial) whether the claimant (whom I found to have capacity) should receive damages to reflect the set up and running costs of a personal injury trust.
The background to the claim is set out in the liability judgment of Andrews J (as she then was) reported at [2018] EWHC 1824 (QB) and the quantum judgment reported at [2021] EWHC 3058 (QB).
Lump Sum or Periodical Payments Order
By section 2(1) of the Damages Act 1996 a court awarding damages for future pecuniary loss in respect of personal injury is required to consider making an order that the damages are wholly or partly to take the form of periodical payments.
CPR 41.7 requires the court to have regard to all the circumstances of the case and in particular to consider the form of order which best meets the claimant's needs having regard to the following factors:
a. the scale of the annual payments taking into account any deduction for contributory negligence.
b. the form of award preferred by the claimant including
i. the reasons for the claimant's preference; and
ii. the nature of any financial advice received by the claimant when considering the form of award; and
c. the form of award preferred by the defendant including the reasons for the defendant's preference.
The claimant has received financial advice from Richard Cropper. He has prepared 3 reports and I heard oral evidence from him. His evidence was, given the size of annual payments, that the claimant's needs would be best met by a periodical payments order. In summary, he was concerned that uncertainty in the performance of future investments meant that there was a risk that returns anticipated by the discount rate would not be achieved. His view was that the risk of underperformance should not be borne by the claimant. Mr Feeny (who appears for the defendant) did not challenge that conclusion.
Miss Ruck who appeared for the claimant confirmed that the claimant accepted Mr Cropper's advice and was content that she should receive a periodical payments order.
I have considered the claimant's detailed witness statement dated 22 October 2021. In that statement she confirms that she has discussed the matter with her father. Her position is summarised at paragraph 3:
“…. I have really considered hard whether it would be better to have the lump sum myself and I think it should be my decision. However, my dad and my legal representatives have concerns about that, given what Mr Cropper says in his report. They all agree with Mr Cropper's advice that an annual payment is the best way forward. Having listened to them and discussed it all, I agree with the conclusion reached by Mr Cropper. It is my preference to have my damages awarded in respect of future care and case management paid by way of periodical payments.”
Taking into account the factors set out in CPR 41 I have come to the clear conclusion that I should order that the claimant's damages for future pecuniary loss should take the form of periodical payments.
Variation of the Periodical Payments Order
Article 2 of the Damages (Variation of Periodical Payments) Order 2005 (“the 2005 Order”) gives the court power to include as part of an order for periodical payments provision that the periodical payments may be varied (such an order is referred to as a “variable order”).
The power arises:
If there is proved or admitted to be a chance that at some definite or indefinite time in the future the claimant will–
(a) as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration, or
(b) enjoy some significant improvement, in his physical or mental condition, where that condition had been adversely affected as a result of that act or omission.
The mechanism envisaged by the Order
If such an order is made, Article 5 of the 2005 Order provides that it “must specify” the relevant disease or type of deterioration or improvement and “must provide” that a party “must obtain the court's permission to apply for it to be varied unless the court otherwise orders”.
The requirement to specify the relevant disease or type of deterioration or improvement is central to the operation of the 2005 Order. See in particular:
a. Article 7 which provides that a party may only make one application to vary a variable order in respect of each specified disease or type of deterioration or improvement
b. Article 10 which requires an application for permission to vary the order (which is required by Article 5 unless the court dispenses with the requirement) to be accompanied by evidence that “the disease, deterioration or improvement specified in the order …. has occurred”
c. Article 13 which allows the court to vary the order if satisfied that that “the disease, deterioration or improvement specified in the order …. has occurred”
The need for permission to apply to vary the order introduces a gate-keeping step into the process (similar to permission stage built into most appeals and into judicial review proceedings). Article 10 deals with the application for permission and provides (Article 10(5)) that it will be dealt with “without a hearing” after consideration of the applicant's evidence and any representations made by the respondent. If permission is refused the applicant has the right to have the refusal reconsidered at a hearing where any decision is final (Article 11). If permission is granted the Court will give directions for the final determination of the application.
Article 14 provides that unless the provisions of the 2005 Order are inconsistent with them, the Civil Procedure Rules (“CPR”) will apply. CPR 41 (which deals with damages) makes no specific reference to the variation of periodical payments. CPR 39.2 provides that the general rule is that interim or final decisions made by the court are to be made at a public hearing. CPR 23.8 sets out certain instances in which the court may make an order on an application without a hearing. The application to vary the variable order (the substantive application) will therefore generally take place at a public hearing in the usual way. CPR 52 and its Practice Directions will govern rights of appeal.
There was some suggestion in the course of argument that the application to vary might be dealt with on paper without any right of appeal. For the reasons set out above I reject that contention.
The Power to Vary
There are clear similarities between the terms of the 2005 Order and the terms of section 32A(1) of the Senior Courts Act 1982 which authorises the court to award provisional damages:
This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the [claimant] will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition
With the exception of the underlined words, Article 2(a) follows section 32A(1). It follows that judicial guidance on the application of section 32A(1) will assist with the application of Article 2(a). In Kotula v EDF [2011] EWHC 1546 (QB), Irwin J accepted the submission that the basis for variation of periodical payments is in law “identical for all essential purposes” to the test under the amended Damages Act 1996.
In my view the power to vary an order under Article 2(a) covers physical and mental conditions. Such an interpretation is consistent with the view taken by Irwin J in Kotula that the 2005 order does not mark a change on legal policy. The omission in the 2005 Order of the underlined words in the Statute seems to me to be simply a matter of drafting. The underlined words have been removed because they are not necessary.
The effect of Scott Baker J's decision in Willson v Ministry of Defence [1991] ICR 595 (and the subsequent decision of the Court of Appeal in Curi v Colina [1998] 7 WLUK 549 and also the decision of Slade J in Chewings v Williams [2009] EWHC 2490 (QB) at para.12) is that before the power arises there has first to be proved or admitted a chance (ie something that is measurable rather than fanciful) that the claimant will develop some serious disease or suffer some serious deterioration to her physical (or mental) condition.
In Willson, the Learned Judge found on the evidence that no “chance of a serious deterioration” had been established and so no order could be made.
The evidence
The application for a variable order is made by the defendant because the serious deterioration for which it contends will lead to a decrease in the cost of the claimant's day-to-day care. The...
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