Winston Hunter KC - Contested Interim Payment Application - Summary by Stephen McNamara

30th June 2022

Winston Hunter KC instructed by Jeanne Evans of Potter Rees Dolan Solicitors – Contested Interim Payment Application – Summary by Stephen McNamara

Mini-summary

This was a contested interim payment (“IP”) application. HHJ Pearce sitting as a Judge of the High Court ordered the Defendant (“D”) to make a further IP in the sum of £170,000 in addition to previous IPs which totalled £422,000. The judgment addresses: (1) the nature of evidence upon which a Claimant (“C”) can rely, (2) whether the IP would prejudice D by creating an unlevel playing field (per Campbell v Mylchreest [1999] PIQR Q17), (3) the two stages of the Eeles v Cobham [2009] EWCA Civ 204 test, (4) whether only losses to the date of the application, or also losses likely to be incurred between the date of the application and the trial, should be taken into account, and (5) the application of different reasonable proportion percentages for the pre-application and post-application periods (to reflect greater uncertainty about the eventual extent of recovery of damages in the latter).

Practical implications

The judgment described C’s evidence in support of the care regime as “not overly robust”. It came from the case manager and other treating clinicians/therapists. The absence of evidence from medico-legal experts was not criticised because the regime had only recently been established. Nonetheless, the judge stated that the opinion of such experts would in principle carry greater weight. The Defendant did adduce evidence from medico-legal experts but the judge concluded that it contained “little analysis…of the Claimant’s injuries and his consequent needs”. The mere fact that D had obtained evidence from such experts was not in itself sufficient when the contents of it did not adequately address the issues.

The judge determined that post-application/pre-trial losses should be taken into account but did not extend those losses to the presumed trial date some 2 years hence. Instead, he limited the post-application losses to 1 year. His reasons were in summary to: (i) protect D against the risk of overcompensation, (ii) guard against what D asserted was a risk of C developing a learned dependency if subject for too long to a care regime alleged to be excessive and (iii) enable C to obtain medico-legal expert evidence once the care regime had been longer established if a further IP was required to fund it. He also adopted 80% as a reasonable proportion of the damages to date (where the was greater certainty about the likely extent of eventual recovery) but 66% for the post-application damages where the uncertainty was greater.

Background

The Claimant is a Polish national resident in the UK who, on 01.06.19, suffered catastrophic injuries when as a pedestrian he was struck by a car driven by the Defendant. Liability was initially contested but, prior to the IP application, a settlement had been reached in which C would recover 80% of his damages as assessed or agreed. D had previously made six IPs totalling some £422,000. A best interests decision taken in the months prior to the IP application had resulted, from February 2022, in the C living in the community with a package of 24 hour support. The further IP of £175,000, or such other sum as the court saw fit, was sought in order to fund C’s ongoing rehabilitation, including the care regime. D contested the application asserting that the IPs to date were sufficient and C had not demonstrated any entitlement to a further IP sum.

What did the court decide

The court decided:

The losses likely to accrue in the post-application period, and to be taken into account for the purposes of deciding whether to order a further IP and, if so, in what amount, should be limited to 1 year for the reasons set out above;

A lower reasonable proportion percentage figure (66% rather than 80% for the pre-application period) should be applied to the post-application period to reflect greater uncertainty about the eventual extent of damages recovery;

D’s medico-legal evidence was lacking in detail and analysis and, as such, D’s case appeared significantly to understate C’s likely care needs;

C’s reasonable care needs probably did not extend to the 24 hour regime which had recently been put in place;

The appropriate assumption for the purposes of estimating the likely care costs in the next 12 months was instead that C would in 12 months’ time reasonably require no night care and only half the daytime care currently in place;

The future year’s care costs should be calculated accordingly by extrapolating from the higher costs set out in C’s evidence;

Ordering a further IP would not imbalance the playing field so as to prejudice D but the possibility of such prejudice was a relevant factor when exercising Eeles caution as to the appropriate amount of the eventual judgment sum;