R1X2 v Hillingdon Hospitals NHS Foundation Trust

The claimant is now aged 18 years. She suffers from mixed bilateral spastic dyskinetic cerebral palsy. Her gross motor skills are profoundly affected and she is unable to roll, sit, stand or walk unaided. She has very limited upper limb function and is subject to involuntary movements. She has severe learning difficulties, suffers from epilepsy, has no speech and is tube fed. As will be apparent from this brief description of her injuries, she is fully dependant on others. She requires two carers for hoisting. Her life expectation is limited to between 40 and 45 years. By this application dated 3 December 2024 she seeks a further, and substantial, interim payment in the sum of £2.75 million. This sum is in addition to the interim payments of £1.1 million which have already been made.

The underlying action is a claim for damages for personal injury and consequential losses following the claimant’s birth injury. I need say nothing in this judgment concerning the facts giving rise to the claim as liability was compromised on 5 December 2022 when it was agreed that the defendant would pay 80% of the damages calculated on a full liability basis.

The trial on quantum is listed for 3June 2025. The Schedule of Loss and the claimant’s accompanying evidence were served on 17 December 2024. The Schedule includes all of those elements which one would expect to see in a claim for injuries of maximal severity such as this. The total value of the retained sum claimed is in the order of £10m (before the liability deduction) together with a periodical payments order for care and case management. It is, on the pleadings at least, therefore a very substantial claim. Unfortunately, service of the defendant’s counter-schedule (due on 4 March 2025) has been subject to an unavoidable delay and an application for an extension of time for service of the document and accompanying expert evidence has been made, although that application is not before me today.

The claimant is represented today by Mr Maskrey KC and the defendant by Mr Whitting KC.

The legal framework for this application is not contentious. The principles which I must apply in a claim such as this, which is likely to be the subject of an order for periodical payments, are drawn from R v Eeles and Cobham Hire Services Ltd [2009] EWCA Civ 204. I summarise the general principles below:

Under Eeles stage 1 the court must make an assessment of the value of the heads of loss which the trial judge is bound to award as a capital sum leaving out of the count heads of future loss which the trial judge might wish to deal with by way of a periodical payments order. Typically the heads of loss which are quantified for this, first, stage include general damages for pain, suffering and loss of amenity, past losses (assessed on a conservative basis and either taken to date or to the predicted trial date depending on the facts) and interest on those sums. Accommodation costs are usually included within this stage of the assessment because it is common in practice for accommodation costs to be awarded as a lump sum (including those elements which relate to future running costs). The claimant is entitled to a high proportion of that sum and 90% has been applied in some cases: see for example AC v St George’s Hospital Trust [2015] EWHC 3644 per Whipple J. Under this stage of the analysis I do not need to concern myself with how the money will be spent, although if the use to which the interim payment is to be made would or might have the effect of inhibiting the trial judge’s freedom of decision by creating an unlevel playing field then this will be a relevant but not conclusive factor which may be outweighed by the consideration that the claimant is free to spend the damages awarded at trial as he or she wishes.

Under Eeles stage 2 the court may, in addition, include elements of future loss in the assessment of the likely amount of the final award but only if (a) the court has a high degree of confidence that the trial judge will award them by way of capital sum and (b) there is a real need for the interim payment requested in advance of trial. To illustrate the principle, Smith LJ explained in Eeles at paragraph 45 that, 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. She continued “[the judge] 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 expenditure of approximately the amount he proposes to award is reasonably necessary. If the judge is satisfied of that, to a high degree of confidence, then he will be justified in predicting that the trial judge would take that course and he will be justified in assessing the likely amount of the final award of such a level as will permit the making of the necessary interim award.”

The facts in support of the application are set out in the witness statement of Ms Griffiths of Irwin Mitchell solicitors. In summary, the impetus for this further application for an interim payment is the urgent need for suitable accommodation for the claimant and her family. The family (which includes two siblings) are currently living in rented accommodation in south London. It is a six bedroomed detached house with a rental cost of almost £8,000 per month. The initial tenancy agreement was for three years with a break clause at two years; however shortly after plans were drawn up to adapt the property for the claimant’s use the Deputy was informed that the tenancy would not go beyond the two year break clause. Thus, come what may, in January 2026, the family will have to move house. A property finding company, Search Accessibility, was instructed on the claimant’s behalf and a house located in Purley has been identified. The house is considered suitable for the claimant’s needs by the claimant’s accommodation expert, Mr Steve Woodley: it has close transport links for carers; it can be adapted for use and is of sufficient size that an extension need not be built. It is however of a considerably higher price than that which was originally estimated by Mr Woodley. An offer of £1.925,000 has been accepted. This figure compares with the range originally referenced by Mr Woodley of between £995,000 and £1.4m.

Under Eeles stage 1, Mr Maskrey submits that the total figure for pain, suffering and loss of amenity, special damages and expenses is £1,223,705 net of interest. This figure takes into account a 20% deduction from the gross figures to reflect a conservative assessment and then a further 20% deduction for the agreed liability discount. Mr Maskrey submits that I should include an additional figure of £1m for the Swift valuation of the capital cost of accommodation, together with adaptation costs of £510,000 and £150,000 for the costs of purchase. Subject to the 20% discount to reflect a conservative assessment of a reasonable proportion and a further 20% discount to reflect the liability compromise the accommodation figure is rounded down to £1,050,000. Thus, on the claimant’s analysis, a total of £2,273,705 is available for the interim payment under Eeles stage 1 However, this must be reduced by the value of interim payments (£1.1 million) already received. The outstanding balance available under this stage of the analysis is therefore £1,173,705 which Mr Maskrey rounds down to £1.15 million.

The capital cost of the property is £1,925, 000, the cost of purchase of the property is £150,000 and the cost of maintaining the care regime to trial is likely to be in the order of £125,000. Additionally, Mr Maskrey seeks £350,000 by way of what he describes as “headroom” in order that a start can be made on adaptations to the house. Mr Maskrey recognises therefore that in order to obtain an interim payment of sufficient magnitude to purchase the Purley property and to maintain the care regime to trial he needs to persuade me that the need for the interim payment is both real and urgent such as to justify the court awarding, at this interim stage, elements of future loss.

Mr Maskrey submits that the balance should be made available now. In support of the real and urgent need for the interim payment, Mr Maskrey invites me to take into account a number of factors. First, although the cost of the property is higher than anticipated by Mr Woodley, there are savings of around £284,000 in the cost of adaptations which must be brought into account as no extension is needed. Second, he draws my attention to the witness statement of the property finder which sets out that a large number of houses (in the order of around 30) have been viewed and, so far, only the Purley property has been found to be suitable. Third, there is an urgent need for a property. The trial is listed for June and a judgment may not be available until July or even later. If a search for a property is commenced following the handing down of the judgment then it is very unlikely that an alternative suitable property will be found and adaptations made by January 2026 when the current tenancy comes to an end. This in turn will necessitate the need to rent another property for the claimant and her family. This property will require adaptations, even for its temporary use. Those costs (of a further rental and adaptations) will be wasted costs. Furthermore the need to move twice will cause great disruption to the claimant and her siblings who will need to move schools yet again. By contrast the Purley property which has been identified will take four months or so for adaptations to be made. There will therefore only be the need for one further move, minimal disruption and no further layer of wasted costs.

Mr Whitting finds himself in an unenviable position in defending this application. No counter schedule or evidence has been served on behalf of the defendant. I am informed that there has been a delay in the production of the key expert reports and that it will be a few weeks before they are available. Thereafter the counter schedule will need to be finalised and authority obtained from Mr Whitting’s institutional client to serve the pleadings and the suite of expert evidence. I accept fully that these evidential problems are not the fault of the defendant’s legal team. But it makes the defendant’s task of opposing the application unusually difficult.

Mr Whitting nonetheless makes the following points. He submits that I should take a broad brush approach to past losses and deduct one third to reflect the vicissitudes of trial before applying the 80% liability factor and the 80% figure to reflect a reasonable proportion. He informs me that life expectancy will be hotly contested albeit no expert evidence has been served. He submits in his skeleton argument that the value of the property is too high and he draws my attention to the fact that one explanation advanced for seeking a house of that value is the need to have a garden of sufficient size to build a hydrotherapy pool, the need for which is disputed. In respect of the second stage of Eeles, he submits that there is no demonstrated real need to a further interim payment. The defendant’s evidence will be finalised and served within the next month or so. A round table meeting is in the diary for a date in April with a fall back date in May and it is vanishingly unlikely that any real headway could be made by the claimant in respect of the purchase of a property let alone the adaptation between now and that meeting when he anticipates there will be settlement of all issues. I should be slow to fetter the trial judge’s discretion and to create an uneven playing field by permitting an application for an interim payment which enables the claimant to proceed with this purchase of the property.

I am satisfied that the figure produced under the first stage of Eeles is in the order of £2,273,705. From this figure, £1.1m has already been paid by way of interim payment leaving a balance, rounded down, of £1.15m. In reaching this conclusion I have taken into account that the special damages claimed are substantiated and that overall the claim which is advanced in Ms Griffiths’ statement is conservative. No interest has been claimed; a generous Housecroft discount has been made and the deputy costs have been reduced. Only 80% has been taken by way of a reasonable proportion. I am also bound to take into account by contrast that no expert evidence (or any evidence) has been served to contradict the claim by the defendant. Whilst accepting that it may not have been possible for the defendant to serve a full suite of expert evidence it could, or should, have been possible for it to serve some limited expert evidence relevant to the points in dispute in this application: for example, a care report addressing the question of the value of past gratuitous care or a report challenging the claim for special damages. The submission that I should adopt a broad brush and simply reduce the figure claimed by one third to take into account the likely outcome at trial is neither evidenced nor principled.

In respect of the claim for accommodation costs under Eeles stage 1, I accept that the purchase price of £1.925m is well over the range estimated by the claimant’s expert of £1m to £1.4m. Mr Whitting makes the legitimate point that some of the additional capital cost must relate to the need for a larger garden for the installation of a hydrotherapy pool. However I must also take into account that there is a saving of around £300,000 from the original predicted price because there is no need for an extension. Of more importance however over 30 properties have been considered and none of those, save for the Purley property, have been deemed to be suitable for the claimant which suggests that the expert assessment may have been too low. No evidence has been served by the defendant which disputes the suitability of the property or which suggests that there are other suitable properties available, or likely to become available, which would cost less.

There is therefore a balance needed if the Purley property is to be purchased and the care regime continued to trial. I am satisfied that there is a need for the balance to enable the Purley property to be secured and to enable the care regime to continue to trial. The need is real and urgent for the reasons advanced by Mr Maskrey. The Purley property must be purchased soon because the vendors have indicated that they are not prepared to wait until this claim is resolved (whether at trial or an earlier round table meeting). If it is not purchased now then it is overwhelmingly likely that the claimant and her family will have to move from the current property to another rental property on an interim basis with the disruption and wasted money that will be entailed. Mr Maskrey submits that I should give serious consideration to making an interim payment of a further £355,000 in order to make headway with adaptations. I do not accept that there is a need for this additional sum. The trial is in June. The purchase of the house and associated planning applications are likely to take some time and I find it very unlikely that any building work will be undertaken before June.

I add that I have a high degree of confidence that the payment of this additional figure under the second stage of Eeles can be achieved without interfering with the final form of the award. There are many elements of the claim for future losses which are unlikely to form part of any periodical payments order, for example, transport, aids and equipment, and the costs of assisted technology.

It follows from the above that as I am satisfied applying the second stage of Eeles that I should order a further interim payment in the sum of £2.195 million and I do so. I am conscious that this application is made in the context of the purchase of a particular property which has been identified and deemed to be suitable for the claimant. For obvious reasons I do not and cannot approve the purchase of a particular property. This is a matter for the Deputy. What I am doing in this application is recognising and approving that expenditure in the order of the sum which I am awarding is needed now and is reasonable.