RXK (A child proceeding by her mother and litigation friend GXK) v Hampshire Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Master Cook |
| Judgment Date | 21 October 2019 |
| Neutral Citation | [2019] EWHC 2751 (QB) |
| Date | 21 October 2019 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ16C03773 |
[2019] EWHC 2751 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Cook
Case No: HQ16C03773
Robert Marven QC (instructed by Irwin Mitchell) for the Claimant
Richard Booth QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 3 October 2019
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.
On 3 October 2019 the Claimant's application for further interim payments on account of damages and costs was listed before me. By the time of the hearing the only live issue was the application for a further interim payment on account of costs.
It quickly became apparent that the application had not been presented in the most helpful way and that much of the material essential to determining the application was missing. It also became clear the Claimant was seeking an interim payment on account of quantum costs in circumstances where the only previous order for costs in existence related to liability costs. Rather than simply dismiss the application I adjourned it to enable the claimant's advisers to put their house in order.
Following the publicity given to the decision of His Honour Judge Robinson in the County Court case of X v Hull & East Yorkshire Hospitals NHS Trust and the subsequent refusal of permission to appeal by Irwin LJ this sort of application has become common in high value clinical negligence and personal injury claims where there is likely to be substantial delay before quantum can be determined by the court. I am aware that there is no decision of the High Court on the principle of whether such applications are well founded and have an adequate juridical basis in the rules and/or authorities. I therefore indicated to the parties I would give a short written judgement in the hope that such applications would be better prepared in future.
The background to this case
The Claimant suffered neurological injury as a result of a profound asphyxial insult at the time of her birth on 9 November 2013 as a result of negligent delay in her delivery. A neonatal MRI performed five days after birth showed evidence of ischaemic changes in the basal ganglia and thalami. It is the opinion of the Claimant's consultant paediatrician that she suffers from dyskinetic cerebral palsy GMFCS II, she is cognitively spared (although there is uncertainty about the extent of any learning difficulties), she has bilateral metaphyseal hip dysplasia, frequent difficult behaviour, disturbed sleep and associated dependency.
Proceedings were issued on 2 November 2016. Judgment was entered for damages to be assessed by way of order dated 25 July 2017, which also awarded the Claimant her liability costs to be subject of a detailed assessment if not agreed. This order also provided for interim payments on account of damages in the sum of £100,000 and of costs in the sum of £50,000.
The first CMC in the assessment of damages took place before me on 29 March 2019. I made orders for disclosure and for the parties to obtain reports from experts in paediatric neurology, neuropsychology and care. The primary purpose of these reports was to enable the parties and court to form a view about when it would be possible to assess damages on the basis of a settled prognosis. It is the court's experience that in the majority of such cases the Claimant will be between the ages of 12 and 22 before a final prognosis can be given.
The application for a further interim payment on account of costs was supported by one paragraph in the witness statement of Ms Bean, the Claimant's solicitor;
“59. The Claimant also seeks an interim payment on account of her costs in the sum of £150,000 pursuant to the Court's discretion in CPR rule 44.2. A schedule of costs is exhibited to this statement as exhibit “AB-13 and totals £410,136.88. Interim payments of £100,000 have previously been received (£50,000 in January 2017 and £50,000 in August 2017), and therefore this payment would mean that the total interim payments on account of costs would be £250,000 (just over 60% of the total costs in the costs schedule). I submit that it is likely there will be significant delay before quantum is resolved in this matter (at least 3–4 years, but possibly much longer in uncertain future), by which time costs are likely to be significantly higher, and therefore I respectfully request that an interim payment on account of costs is made at this stage pursuant to the judge's discretion.”
The schedule of costs exhibited to Ms Bean's witness statement was a short summary of...
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...solicitors who may be facing such problems in a range of cases. [my underlining] 14 In RXK v Hampshire Hospitals NHS Foundation Trust [2019] EWHC 2751 (QB) Master Cook described the discretion conferred by section 51 of Senior Courts Act 1981 and expressed in CPR 44 (2) as a very wide one.......
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