M v Chelsea & Westminster NHS Trust
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE SWIFT,MR.JUSTICE TEARE |
| Judgment Date | 18 July 2008 |
| Neutral Citation | [2007] EWHC 3254 (QB),[2008] EWHC 1664 (QB) |
| Date | 18 July 2008 |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHQ/07/0346,Case No: QB/2008/APP/0302 |
[2007] EWHC 3254 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
MRS JUSTICE SWIFT
Case No: IHQ/07/0346
Mr P Rees QC (instructed by Kingsley Napley) appeared on behalf of the Claimant
Mr D Balcombe QC & Ms Neale (instructed by Weightmans) appeared on behalf of the Defendant
The claimant, who is now ten years old, claims damages for personal injury and consequential loss suffered as a result of negligence on the part of doctors at the Chelsea and Westminster Hospital.
In February 2000, when she was 2 1/2 years old, the claimant developed pneumococcal meningitis. As a result of substandard care on the part of medical staff at the hospital, there were two occasions when the condition went undiagnosed and untreated. In consequence, the claimant suffered severe brain damage. By letters from the defendant's solicitors sent on 31 May and 28 June 2005, breach of duty and causation were admitted. Judgment was entered against the defendant on 10 May 2006.
In the period between June 2005 and April 2007, the defendant made five voluntary interim payments to the claimant, totalling £655,000. In addition, the defendant paid the sum of just over £8,000 directly to the Compensation Recovery Unit. By a notice filed on 25 April 2007, the claimant requested a further interim payment. Evidence filed on her behalf indicated that she was seeking the sum of £1 million. The application was originally to be heard earlier this year. In July 2007, the defendant agreed to make a further voluntary interim payment of £110,000, making total interim payments of over £773,000 in all. That further payment was made without prejudice to the claimant's application for the larger sum. It was agreed that the application should be adjourned to Monday of this week.
On 24 May 2006, there was a case management conference before Master Yoxall. He gave detailed directions for the progress of the case. In particular, he ordered that the claimant should serve, by 31 January 2007, a final schedule of loss and damage and that the defendant should serve its final counter-schedule by 29 June. No trial window was identified at that time. The case was listed for a further case management conference in July of this year. In the event, the claimant was not ready to serve a schedule of loss by the end of January and the defendant agreed to an extension of time for service until June. The revised date for the defendant's counter-schedule was 1 November. It was agreed that the further case management conference should be postponed until 29 November. It was always anticipated that the parties' experts' reports would be served with, respectively, the schedule and counter-schedule. Thus the claimant's evidence in support of the schedule has been served. The defendant's evidence will be served with the counter-schedule on 1 November.
In support of this application, the claimant relies on two witness statements from Mr Ross Brain, dated 24 May and 16 October 2007. Eight experts' reports are exhibited to Mr Brain's latest statement. There is also a witness statement from Mr William Mealing, the claimant's father, in the substantive action. It is extremely lengthy, running to 142 pages.
The defendant has filed a witness statement from Ms Rena Field, of its solicitors, in opposition to the application. As I have indicated, the defendant's expert evidence is not yet available and is due to be disclosed with the counter-schedule in the near future.
The claimant suffers from severe cerebral palsy with associated cortical visual blindness, deafness and epilepsy. She has no speech. She is considered to have some understanding of cause and effect within the profound and multiple learning difficulties range. She has limited mobility. She has a life expectancy to the age of 60 years. Needless to say, the claimant's injuries have had a devastating effect on her and on members of her family.
I turn now to the family circumstances. The claimant's parents were married in 1995. The claimant was their second child. At the time she sustained her injuries, she was one of three children. Two further children were born subsequently. At the time of his marriage, Mr Mealing was working as a fund manager for a prominent American trust company. He had previous experience in merchant banking and investment management. In his witness statement he says that he became disenchanted with his quality of life and decided to have a change. Thus, in April 1996, he terminated his employment, intending to become an entrepreneur and promoter of investments. He concentrated on developing two particular projects. The first foundered because of technical problems. The second, which was a hedge fund, was a complicated exercise which took several years to establish.
Mr Mealing says that, by November 1999, he had raised one large sum of money for the fund and was expecting to receive further monies in the early part of 2000. He says that, at the time of the claimant's illness, he was devoting large amounts of time to this project. If he had raised the monies which he was expecting, he would have made a very considerable amount of money from the fund, estimated at about £25 million. The claimant's mother had ceased work at the time of her marriage, or shortly thereafter. Her first child was born in 1996, the claimant in 1997 and her third child in December 1998. A nanny was engaged to assist in the children's care, although Mr Mealing says that it was not their intention to have paid assistance with childcare in the long term.
At the time of his marriage, Mr Mealing owned a house in Gloucestershire, which he estimates was worth £900,000-£1 million. In 1997, he purchased a substantial five-floor house in Pelham Crescent in the Borough of Kensington and Chelsea. He purchased the leasehold of the house for a price of £1.8 million, which he financed by way of a 100 % mortgage using his Gloucestershire house as collateral.
After the claimant developed meningitis, she became very ill and for weeks her life hung in the balance. She was eventually discharged from hospital in August 2000. From the time of her discharge, she was provided with 24-hour nursing care by the local PCT. Plainly, this was a difficult and demanding time for her parents, who also had two other young children to care for. Mr Mealing says that, as a result of the demands made upon him at that time, he was unable to devote the necessary time to pursuing his business interests. All his spare time was spent supporting the family and assisting with the claimant's care. As a consequence, he claims, his plans foundered and the hedge fund which he was forming had to be wound up.
Mr Mealing's evidence is that he has had no income at all since April 1996. Initially he had some funds, representing savings from his former employment, on which he was able to draw. In 2000, he managed to obtain a new mortgage on the London house. Mr Mealing's lack of income and increased expenses resulted in financial difficulties, which caused him to make a decision to sell the London house. The house was on the market for two years but remained unsold. Mr Mealing said that, during this period, he attempted to obtain employment but failed. His creditors were demanding payment. In October 2003, both the London and the Gloucestershire houses were repossessed. At that point, the claimant's parents decided to have what has been described as a “sabbatical year” in France. The whole family moved to the South of France where they took rented property. Mr Mealing says that this was made possible by loans totalling £340,000, made by family and friends, and a loan from his pension fund of £400,000. Meanwhile he was, he says, compelled to transfer to his parents-in-law his collection of antiques, works of art and fine wine, which he estimates to have been worth about £550,000 in total.
Once the family were in France, the PCT continued to provide full-time care for the claimant. The claimant's parents met the costs of the carers' travel to and from the UK and accommodated them at their rented property. In September 2004, the claimant's parents decided to remain in France permanently. Mr Mealing has advanced a number of reasons for the family's decision to settle in France. One is that the warm weather is beneficial to the claimant. Another is the proximity of their chosen location (which is near Nice) to Monaco and Switzerland where the claimant's father hopes to establish useful business contacts.
In September 2004, the PCT withdrew its funding for care. From that time until about October 2005, the claimant's parents had no paid care for her, save for the assistance of a local nanny for a few months. They provided the major part of her care themselves until October 2005.
Liability and causation had been admitted by June 2005 and the first interim payment of £200,000 was made in July 2005. Subsequent payments have been made on a regular basis. From October 2005, the claimant's parents engaged paid care for the claimant through an English agency. This involved carers travelling from England to Nice and then to the claimant's home. This arrangement has continued ever since. The reason why matters have been arranged in this way is said to be the difficulty in obtaining local carers (in particular, English-speaking local carers) whom the claimant's parents wish to employ.
Between October 2005 and October 2006, the claimant had one carer during the day, while her parents provided any...
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...in which the effect of a PPO has on the jurisdiction to make an interim payment was Mealing v Chelsea v Westminster NHS Trust [2007] EWHC 3254 (QB). The claimant had already received over £773,000 in interim payments and now sought a further £1 million. The claimant valued her claim at abou......