Stringman v McArdle

JurisdictionEngland & Wales
Judgment Date01 November 1993
Neutral Citation[1993] EWCA Civ J1101-1
Judgment citation (vLex)[1993] EWCA Civ J1101-6
CourtCourt of Appeal (Civil Division)
Date01 November 1993
Jennifer Margaret Stringman (a Minor Proceeding by Her Father and Next Friend
Michael Arthur Stringman)
(Plaintiff) Appellant
Thomas Patrick Mcardle
(Defendant) Respondent

[1993] EWCA Civ J1101-1

(Mr. Justice Mccullough)

Before: Lord Justice Butler-Sloss Lord Justice Stuart-Smith Sir Tasker Watkins






MR. RODNEY SCHOLES Q.C. and MR. A. GOFF (instructed by Messrs. Dooley & Co. Solicitors, Kirkby) appeared on behalf of the Appellant.

MR. ANDREW EDIS (instructed by Messrs. Hill Dickinson DavisCampbell, Solicitors, Livepool) appeared on behalf of the Respondent.


This is an application for leave to appeal and the appeal, since we have given leave, from the refusal by McCullough J. on 3Oth July 1993 to make a third interim payment of damages in a personal injury claim by a child who has suffered grave injuries in a road accident. On 5th December 1989 she was crossing on a pelican crossing with the lights in her favour and, while part of the way over, was hit by the defendant's car. She suffered severe head injuries causing significant brain damage. She was 11 at the time, having been born on 14th August 1978, so she is now 15. She is a tetrapelgic, with severe mental and physical disability. On 26th October 1992 judgment was entered for the plaintiff with an agreed level of contributory negligence of 5 per cent and damages to be assessed. Her degree of recovery and her life expectancy have been uncertain and the issue of damages delayed for an up-to-date medical prognosis. On 14th March 1991 the first interim payment of £12,000 was made for a car to transport her and her wheelchair. On 18th February 1992 there was a second interim payment of £75,000 to buy a house. There was an appeal against that award by the defendant, which was compromised, and a consent order was made on 1st April 1992 in the sum of £75,000, and the money was applied for the purpose of buying a house which has now been bought. An application was made for a third interim payment of £100,000 to adapt the house already bought, which is in poor structural condition and requires a considerable amount of work to make it habitable, quite apart from requiring considerable alterations to make it suitable for a child in her serious physical condition. On 30th April 1993 the third interim payment was refused by an assistant district judge. There was an appeal to McCullough J. on 30th July when he refused the third interim payment, as I have said, and this appeal is from that refusal.


There is no doubt that the existing house is unsuitable for the the infant plaintiff and her family to live in and that it places a very considerable burden upon her parents, and particularly upon her mother, in caring for her. The judge took the view that the claim put forward by the appellant that £l million by way of damages was likely to be awarded was unrealistic. He also took the view that the plans for conversion were over-elaborate. He suggested that a more modest proposal should be placed before the district judge which would be considerably less expensive. During argument the judge was concerned that a large proportion of the damages would be expended on the provision and adaptation of a house which might leave the appellant insufficiently provided for by way of future care.


On appeal to this court, for the the first time, the proposal has been made by the appellant that the interim award of £100,000 should be paid to the Court of Protection for control by it over the use of the money for the conversion. There is no doubt at all that this child and her parents need to move from the present obviously inadequate accommodation. There is no suggestion by the defendant that that is not so. A suitably adapted property is usually the first requirement for a tetraplegic in order properly to care for him or her, and it is difficult to separate the requirement of proper accommodation with all the appliances that can be provided from the needs of future care. But in my judgment the needs of the child is not the basis for making an interim award within Order 29 rule 11. There are threshold criteria which are required for the Order to apply. The court has to be satisfied under (a) that the defendant against whom the order is sought has admitted liability, or (b) the plaintiff has obtained judgment. In this case the plaintiff has obtained judgment, and the contributory negligence is negligible at 5 per cent. Mr. Edis on behalf of the defendant accepts that the ultimate award to be paid by his client will be significantly in excess of the sum of £100,000 sought together with the earlier awards of £87,000. Consequently the first of the criteria is met. Then the court may,


"if it thinks fit and subject to paragraph (2), order the respondent to make an interim payment of such amount as it thinks just, not exceeding a reasonable proportion of the damages which in the opinion of the Court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence …"


Sub-rule (2) of rule 11 does not apply.


Despite the judge's view that the approach of the plaintiff's legal advisers that they might achieve £1 million is over-optimistic, once Mr. Edis for the defendant accepts that the plaintiff will in due course with awarded a sum significantly in excess of the sums which have been paid and are asked for today, it will be difficult to say that £100,000 will not be a "reasonable proportion". The rule says "the court if it thinks fit" should make an award which is just; not an award which has to meet specific needs.


Mr. Edis has sought to uphold the judge's order and in4 particular his exercise of discretion in refusing the interim award. He concedes that it is not the duty of the defendant to argue the merits of the application for an interim award, but he raises issues of concern over extravagance and unsuitability, and these were issues which clearly very much impressed the judge. Such objections seem to me to exceed the limits of objection by a defendant in such proceedings. Normally such objections to an interim award would be either technical, and sub-paragraph (2) of the rule applies, or on the ground that either damages will not be awarded or the amount to be awarded would be insufficient for the interim award sought. To object on the ground that the money is to be applied for the wrong purpose or is to be applied for too extravagant a purpose seems to me to go outside what one would expect the normal objections of counsel for the defendant to make. Indeed, Mr. Edis has accepted today that with the involvement of the Court of Protection he would not continue to oppose an interim award being made, but he reserves his argument that it should not have been made before the judge.


Clearly a judge in deciding whether to make an interim award exercises his discretion. But, standing back and looking at this case, it seems to me that the judge was plainly wrong not to make the award as asked, subject to any conditions as to how the money should be spent, involving proper safeguards. In my view the judge fell into error in investigating how the money was to be used and whether or not the scheme was too extravagant. It was a matter for whomever was to be responsible for payment out of the money to keep a check on the interests of the child. To take the analogy of payment out under Order 80, one does not look at the individual way in which it has been done except at the stage where the County Court has control of the money which has been paid into court. The criteria in this case required under Order 29 rule 11 have in my view been met, and I see see no reason whatever not to make the interim award.


Mr. Scholes for the appellant has come here today with the sensible suggestion that the right way for this money to be dealt with is not by payment into court to be dealt with by the district judge but for it to be paid into the Court of Protection. In this case, with a teenage girl who will within a comparatively short time be an adult, it does seem that the Court of Protection is extremely suitable. We were invited to look at Heywood & Massey "Court of Protection Practice", 12th edition, and I read from the first-named paragraph on page 18:


"In practice the Court of Protection does not exercise its jurisdiction in regard to minors unless it is clearly to the advantage of the minor patient. Where the only relief required is the application of a minor's property for his maintenance, and there are no family disputes as to what should be done, the jurisdiction of the Court of Protection is usually to be preferred, particularly when the minor is approaching his majority …"


and if it is a matter of dispute it should go to the Chancery Division.


I would respectfully agree with that passage, and say that this is very much a case where we would gain a great deal of help from the Master of the Court of Protection. Not only the child but the parents will gain help because they will be dealing with an area in which perhaps they are unfamiliar, i.e. not only the structural improvements to the house but, more importantly, the enormous amount of adaptation that will be6 necessary for this house to become suitable for a child in the position of the appellant. The experts will come along with a number of schemes, which may be more expensive than is suitable. It may be very difficult for the parents themselves to deal with those experts, and they may well be assisted...

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