England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
SITTING IN THE MANCHESTER DISTRICT REGISTRY
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE TURNER)

		Crown Square Manchester M3 Tuesday 27 February 2001

1. LORD PHILLIPS, MR: On 23 January 1998 Turner J gave judgment in eight claims brought against the British Coal Corporation by miners who had contracted lung disease in the course of their employment. The cases were test cases and the Claimants succeeded. British Coal then entered into a handling agreement with all others with similar claims with a view to settling these claims on the basis of Turner J's judgment. Turner J has been monitoring this operation and we are told that some 130,000 claims are involved.
2. Two discrete issues of principle have arisen in relation to the assessment of damages. On 26 October 2000 Turner J gave a judgment ruling in favour of British Coal on each of these issues. He gave the Claimants permission to appeal.
3. The issues arise as the result of the interest of the Compensation Recovery Unit ("CRU") which was set up under the Social Security (Recovery of Benefits) Act 1997 in seeking to claw back benefits paid under Social Security legislation. The effect of the 1997 Act can be broadly summarised as follows. A party who is liable for causing accident, injury or disease to another person is required to reimburse the Secretary of State for certain benefits paid, or likely to be paid, to the victim. Having done so, that person is entitled to claim credit for those payments when discharging his liability to pay compensation to the victim. Benefits are paid in respect of different consequences of the accident, injury or disease and can only be offset against liability for the like consequences. Like must be offset against like.

The first issue

4. The first issue is whether reimbursements of benefits paid in respect of loss of earnings, care and loss of mobility can been offset against the liability of the compensator to pay interest on those heads of damages.

The second issue

5. The second issue is whether reimbursement of benefits paid in respect of care can be offset against the liability to pay compensation in respect of care which has been provided gratuitously to the victim.
6. These issues arise as a result of the wording of the relevant statutory provisions.
7. Section 1 of the 1997 Act provides as follows:

"(1) This Act applies in cases where-

(a) a person makes a payment (whether on his own behalf of not) to or in respect of any other person in consequence of any accident, injury or disease suffered by the other, and

(b) any listed benefits have been, or are likely to be, paid to or for the other during the relevant period in respect of the accident, injury or disease."

8. Section 3 provides:

"'The relevant period'

(1) In relation to a person ('the claimant') who has suffered any accident, injury or disease, 'the relevant period' has the meaning given by the following subsections.

(2) Subject to subsection (4), if it is a case of accident or injury, the relevant period is the period of five years immediately following the day on which the accident or injury in question occurred.

(3) Subject to subsection (4), if it is a case of disease, the relevant period is the period of five years beginning with the date on which the claimant first claims a listed benefit in consequence of the disease."

9. Subsection (4) has no relevance on the facts of the present case. Section 4 provides:

"(1) Before a person ('the compensator') makes a compensation payment he must apply to the Secretary of State for a certificate of recoverable benefits."

10. Section 5 provides:

"(1) A certificate of recoverable benefits must specify, for each recoverable benefit-

(a) the amount which has been or is likely to have been paid on or before a specified date, and

(b) if the benefit is paid or likely to be paid after the specified date, the rate and period for which, and the intervals at which, it is or is likely to be so paid."

11. Section 6 provides:

"(1) A person who makes a compensation payment in any case is liable to pay to the Secretary of State an amount equal to the total amount of the recoverable benefits.

(2) The liability referred to in subsection (1) arises immediately before the compensation payment or, if there is more than one, the first of them is made."

12. Section 8 provides:

"Reduction of compensation payment

(1) This section applies in a case where, in relation to any head of compensation listed in column 1 of Schedule 2-

(a) any of the compensation payment is attributable to that head, and

(b) any recoverable benefit is shown against that head in column 2 of the Schedule.

(2) In such a case, any claim of a person to receive the compensation payment is to be treated for all purposes as discharged if-

(a) he is paid the amount (if any) of the compensation payment calculated in accordance with this section, and

(b) if the amount of the compensation payment so calculated is nil, he is given a statement saying so by the person who (apart from this section) would have paid the gross amount of the compensation payment.

(3) For each head of compensation listed in column 1 of the Schedule for which paragraphs (a) and (b) of subsection (1) are met, so much of the gross amount of the compensation payment as is attributable to that head is to be reduced (to nil, if necessary) by deducting the amount of the recoverable benefit or, as the case may be, the aggregate amount of the recoverable benefits shown against it.

(4) Subsection (3) is to have effect as if a requirement to reduce a payment by deducting an amount which exceeds that payment were a requirement to reduce that payment to nil.

(5) The amount of the compensation payment calculated in accordance with this section is-

(a) the gross amount of the compensation payment,

less

(b) the sum of the reductions made under subsection (3),

(and, accordingly, the amount may be nil)."

13. Section 9(4) provides:

"For the purposes of this Act-

(a) the gross amount of the compensation payment is the amount of the compensation payment apart from section 8, and

(b) the amount of any recoverable benefit is the amount determined in accordance with the certificate of recoverable benefits."

14. Section 15(2) provides:

"The court must, in the case of each head of compensation listed in column 1 of Schedule 2 to which any of the compensation payment is attributable, specify in the order the amount of the compensation payment which is attributable to that head."

15. Section 17 provides:

"Benefits irrelevant to assessment of damages

In assessing benefits in respect of any accident, injury or disease the amount of any listed benefits paid or likely to be paid is to be disregarded."

16. Schedule 2 is set out as follows:

(1) Head of Compensation	(2) Benefit
1. Compensation for earnings lost during the relevant period	[...] Disablement pension payable under section 103 of the 1992 Act Incapacity benefit Income support Invalidity pension and allowance .... Severe disablement allowance Sickness benefit Statutory sick pay ....
2. Compensation for cost of care incurred during the relevant period	Attendance allowance Care component of disability living allowance Disablement pension increase payable under section 104 or 105 of the 1992 Act
3. Compensation for loss of mobility during the relevant period	Mobility allowance Mobility component of living allowance

Set-off against interest

17. The problem arises in this way. Claimants are entitled to recover special damages in relation to loss of earnings, cost of care and disbursements to compensate for the loss of mobility. These heads of compensation appear in column 1 of Schedule 2 to the 1997 Act. Claimants are also entitled to interest on these damages by reason of the provision of section 35A(1) of the Supreme Court Act 1981 and section 69 of the County Court Act 1984.
18. Benefits have been paid to Claimants in respect of these losses. The benefits in question are described in column 2 of Schedule 2. Sometimes the benefits paid in respect of a particular head of loss exceed the capital sum to which a Claimant is entitled as damages in respect of that head of loss. Under section 6 of the 1997 Act British Coal has to reimburse the Secretary of State in respect of these benefits. Where the relevant benefits exceed a particular head of damage, the effect of this reimbursement is to reduce the liability of British Coal to pay compensation in respect of that head of damage to nil. In these circumstances, can British Coal also set-off the reimbursement of benefit made against the interest payable to a Claimant in respect of that head of damage, or is the Claimant entitled to be paid that interest?
19. It is, at first blush, surprising that a Claimant is entitled to recover interest in respect of costs which have been covered by benefit payments which fall to be clawed back under the scheme of the 1997 Act. On the face of it, any interest in respect of such costs should be recoverable by the Secretary of State. The 1997 Act does not, however, make any provision in relation to interest. The question of whether a Claimant is entitled to recover interest in respect of damages covered by benefit payments was answered in the affirmative by the House of Lords in Wisely v John Fulton (Plumbers) Ltd and the linked appeal of Wadey v Surrey County Council [2000] 1 WLR 820. In the leading speech Lord Hope held at page 831:

"I would be inclined to read the direction in section 17 of the Act of 1997 that benefits are to be disregarded in assessing damages as extending also to the calculation of interest on those damages. I would apply the principle which I suggested earlier that sums which are treated as irrelevant in assessing damages should not be treated as relevant when interest on the damages is being calculated.

The structure of the scheme supports this approach. The Act makes it clear that the system for returning the amount of the benefits received during the relevant period to the tax payer is entirely separate from the court process. As the Lord President pointed out in Wisely's case, the deduction of benefits is to be made under section 8 of the Act at the time when the compensator is discharging his liability to the claimant for the amount of the compensation payment, while the court deals with interest at the earlier stage when it is determining the amount of that liability. The system which sections 10 and 11 provide for the review of and appeal against a certificate of recoverable benefit, which determines the amount to be paid to the Secretary of State by the compensator and the amount of the deduction which he makes when discharging his liability to the claimant, is also designed to operate only at the later stage after the court has determined the amount of that liability."

20. Lord Hope concluded at page 833:

"The effect of section 17 of the Act of 1997, in the context of the scheme which the Act lays down, is that the amount of any listed benefits paid or likely to be paid during the relevant period must be regarded in the assessment of interest on the damages which are to be assessed without taking account of those benefits.

Conclusion

There seemed to me at one stage to be much to be said for resolving the question which has been raised in these cases by a robust application of the principle that a claimant is to be awarded interest only for being kept out of his money to the known fact that, if he has been compensated for his loss during the relevant period by the receipt of listed benefits, the damages awarded to him will be reduced by the deduction of those benefits. But the history of this legislation shows that it has not been possible to solve all problems in a way which is consistent with this principle, and the scheme which Parliament has laid down in the Act of 1997 for the return of those benefits to the taxpayer does not seem to me to permit this approach. I would dismiss the appeals."

21. Lord Clyde delivered a speech which concurred with that of Lord Hope. He remarked on the fact that under the 1997 Act no express provision was made for the payment of interest for the wrongdoer in relation to the period during which the Secretary of State had been out of pocket in respect of the benefits paid to the victim. He went on to comment at page 835:

"The question then arises whether the intention was that this absence of obligation to pay interest to the Secretary of State should enure to the benefit of the wrongdoer, which might be thought unlikely, or, as would seem more probable, to the benefit of the injured person. The former would be achieved by the wrongdoer not being obliged to pay any interest in respect of the recoverable benefits and enjoying the use of the money until he paid it to the Secretary of State. The latter would be achieved by an obligation on the wrongdoer to pay interest to the injured person on the amount of the recoverable benefit. That points to a solution favourable to the respondents."

22. At page 837 Lord Clyde concluded that the answer to the question whether a Claimant could recover interest on costs which had been recovered by benefit payments lay, essentially, in section 17 of the 1977 Act. He said:

"The effect of the section is that in respect of the patrimonial loss the court is to assess the damages as if no benefits had been received. Thus putting aside any deduction in respect of receipts which might otherwise have to be made, and assuming for the sake of simplicity that the only patrimonial claim is for loss of earnings, the damages for the past loss are to be assessed as the total amount of the earnings which the injured person would have received had the accident not occurred. That the injured person may not have actually been out of pocket to that extent is to be disregarded. It is, as it were, to be assumed that he has received no benefits. But if that is the assumption on which the award of damages for past patrimonial loss is assessed, then when it comes to considering interest it should follow that it is on that sum of past loss of earnings that the interest should be calculated. That seems to me to be the necessary consequence of the disregarding of the benefits by the court in the assessing of damages which is required by the section."

23. In reaching this conclusion, Lord Clyde drew, as had Lord Hope, a sharp distinction between the role of the court in assessing the amount on which the Claimant is entitled to recover judgment in respect of damages and interest, and the statutory provision governing the manner in which the Defendant discharges the liability which the court has assessed. Thus, at page 838, Lord Clyde remarked:

"The risk of a double recovery by the pursuer is met, not through the court process, but at the later stage of the making of the compensation payment."

24. It is apparent, however, from the earlier passages I have quoted, that Lord Clyde considered that the end result would be that the Claimants would reap the benefit of the interest recoverable on the portion of their damages that had been covered by benefits paid by and reimbursed to the Secretary of State.
25. The same is true of the conclusion of Lord Millett in his concurring judgment. At page 841 he made the following observation:

"The plaintiff's apparent double recovery of interest is due to the fact that the Secretary of State is content to be repaid without interest but this is a matter between the Secretary of State who paid the benefits and the plaintiff who received them and enures for the benefit of the plaintiff. It does not affect the amount of the tortfeasor's liability, though it reduces the amount he would otherwise be liable to pay to the Secretary of State and increases the amount which he is liable to pay to the plaintiff."

26. The facts in Wisely and Wadey did not require the House of Lords to address the position with which the present appeal is concerned. That is the position where reimbursement by the compensator of benefits exceeds the capital sum awarded as special damages in respect of the head of compensation to which the benefits relate. For this reason I do not consider that the decision in Wisely and Wadey closes the door on the claim by the compensator in this case, that is British Coal to offset the balance of the benefits to be paid to the Secretary of State against the interest awarded to the Claimants in respect of the head of compensation to which those benefits related.
27. As to that claim, the first point taken by Mr Allan QC, for the appellants, relates to the wording of section 1(1)(a) of the 1997 Act. Mr Allan submits that these words (which I have quoted) do not apply to a payment of interest on special damages because such payment is not made in consequence of any accident, injury or disease, but in consequence of a failure to pay prompt compensation in damages for causing the accident, injury or disease. This argument reflects Mr Allan's second point, to which I shall shortly turn.
28. So far as this first point is concerned I would simply say that giving the words of section 1(1)(a) their natural meaning, a payment of interest on damages for personal injury is a payment made in consequence of accident, injury or disease. I consider that there is no reason to restrict the natural meaning of those natural words by excluding the first and vital element in the chain of causation that results in the liability to pay interest - the accident, injury or disease caused by the wrongful act or omission of the person liable to make the payment.
29. Mr Allan's second point raises a further, more focused, point of construction. The offset for benefits repaid to the Secretary of State falls to be made against the head of compensation set out in the column 1 of Schedule 2. In the case of each head the question is whether the description of the head of compensation embraces interest payable under statute to the Claimant on the special damages that fall under that head of compensation. Thus, in the case of the first head, the issue is whether "compensation for earnings lost" during the relevant period embraces interest on special damages awarded in respect of loss of earnings.
30. Mr Allan submits that interest payable on loss of earnings is not compensation for loss of earnings, but is compensation for the delay in being paid the special damages for loss of earnings. He relies upon statements of the Court of Appeal in Jefford & Anor v Gee [1970] 1 QB 130. In that case the Court of Appeal determined the principles governing the award of interest under statute in cases of personal injury. In giving the judgment of the Court, Lord Denning, at page 143, draw attention to the statement of principle of Lord Herschell LC in London, Chatham and Dover Railway Co v South Eastern Railway Co [1893] AC 429 at 437 where he said:

".... I think that when money is owing from one party to another and that other is driven to have recourse to legal proceedings in order to recover the money due to him, the party who is wrongfully withholding that money from the other ought not in justice to benefit by having the money in his possession and enjoying the use of it, when the money ought to be in the possession of the other party who is entitled to its use. Therefore, if I could see my way to do so, I should certainly be disposed to give the appellants, or anybody in a similar position, interest upon the amount withheld from the time of action brought at all events."

31. Lord Denning then went on to hold that the power to withhold interest under statute was intended to give effect to Lord Herschell's principle. He observed at page 144:

"We applied this principle very recently in Harbutt's 'Plasticine' Ltd v Wayne Tank and Pump Co Ltd [1970] 1 QB 447, 468 where we all agreed in saying:

'the basis of an award of interest is that the defendant has kept the plaintiff out of his money; and the defendant has had the use of it himself. So he ought to compensate the plaintiff accordingly'."

32. At page 146 Lord Denning added:

"Interest should not be awarded as compensation for the damage done. It should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him."

33. Mr Allan contends that these statements demonstrate that damages and interest are two distinct elements and that only "damages" falls within the meaning of the phrase "compensation for loss of earnings".
34. The case for the respondent is that interest is an integral element in compensation for loss of earnings awarded so as to ensure that Claimants are fully compensated for their losses. Thus it falls within the scope of the phrase "compensation for loss of earnings".
35. This contention receives support from views expressed in two Scottish cases. In Spence v Wilson [1998] SLT 688, Lord Eassie said at page 692H:

"[Interest] is an inherent part of making good to the Claimant the fact that he did not have the earnings which he should have received at the time at which he should have received them. It is thus compensation for his loss of earnings. I consider therefore that interest on primary loss of wages is embraced in the notion of 'compensation for earnings lost during the relevant period'. It should therefore be included in the amount against which the compensator may offset his liability to repay the listed benefits to the Secretary of State."

36. In the later case, in the Scottish Court of Session (Inner House) of Wisely v John Fulton (Plumbers) Ltd [1998] SCLR 954, the Lord President, Lord Rodger, said at page 961 that in his view this passage correctly expressed the approach which should be adopted. He said that:

"The compensation for earnings lost during the relevant period for the purposes of column 1 of Schedule 2 should include any sum of interest on damages for past loss of earnings in terms of section 1(1A) of the 1958 Act."

37. Lord Caplan, in his judgment in the same case, said at page 967:

"Parties were agreed that the head of compensation described as 'Compensation for earnings lost during the relevant period' in column 1 of Schedule 2 to the 1997 Act should include the whole interest added to such sum. This, of course, is consistent with my view that such interest is a component of damages."

38. The expressions of opinion in Wisely were made without argument and were not considered when that case reached the House of Lords. Mr Allan submits that, either there is a difference between Scots' law and English law on this point, or that these expressions of opinion are erroneous and should be disregarded. The latter submission was made to Turner J who did not agree. He referred to the analysis of the nature of interest made by Lord Diplock in Wright v British Railways Board [1983] 2 AC 773 at 781. This analysis demonstrated that there are two elements reflected in an award of interest:

(i) the depreciation in value of money between the time it should have been paid and the time when it is paid; and

(ii) the loss of use of the money during that period.

39. Turner J's conclusion appears in the following passage of the judgment:

"The rationale for the award of interest on special damages is as Lord Diplock said in Wright's case (above). It may very well be that in addition to ensuring that the value of the award in money at the date of award reflects the true loss at the date when it accrued, the rate of interest also reflects the loss of use of the money during the relevant period. But this component of the rate of interest is likely to yield a relatively small sum in the context of the case as a whole. I heard no submission that would have enabled me to divide the rate into its component parts of (a) inflation protection and (b) loss of use of the money. I would not, as at present informed, encourage any such submission to be made. The reason being that it is recognised that in this area there is an element of pragmatism on the part of courts called upon to adjudicate on matters of interest and 'perfect compensation' either does not exist or must be tempered by practical considerations which discourage too clinical an approach to what is recognised to be at best an approximation. In addition, the substantive point which was finally decided in Wisely in relation to the Act of 1997 viz the exclusion from the computation of special damages any credit in respect of benefits received during the 'relevant period' is, indeed, essentially a practical compromise. It is not unjust, in such a situation that a claimant, who reaps some financial advantage by reason of that exclusion may in certain circumstances become the loser when the amount of that benefit exceeds the total of damage and he is then required to bring into account, as against that benefit, the interest which has been calculated on the notional assumption that he has not received it.

Accordingly, I hold that in a case in which a claimant has received benefit (column 2) which exceeds the amount recovered as compensation (column 1), that excess should be set-off against the combined total of damages and interest up to the level of the total benefit paid."

40. I consider that Turner J's analysis is correct, save that it seems to me that the amount which is recorded in column 1 as compensation should include the interest element. I would go further than Turner J and say that both the depreciation element of interest and the loss of use element are part and parcel of an award which is intended, so far as possible, to put the Claimants in the same position as if the loss in question had not occurred. Thus, both elements of the award of interest can properly be considered, in the case of loss of earnings, to be "compensation for earnings lost" within the meaning of that phrase in Schedule 2.
41. The result involves no injustice. I can see no reason, so far as justice is concerned, why a Claimant should be entitled to be paid interest in respect of financial loss which he has not in fact sustained while, at the same time, the Defendant should have to reimburse benefits paid to the Claimant which exceed the damages for which the Defendant would otherwise be liable.

Gratuitous Care

42. Column 2 of Schedule 2 itemises benefits paid to cover the cost of caring for a person incapacitated through injury or illness. Reimbursement of these benefits falls to be off-set against compensation for cost of care incurred during the relevant period (see column 1). Where a Claimant has paid for care such payments will be recoverable as special damages. It is common ground that these will constitute compensation for cost of care within the definition in column 1.
43. Where care has been provided to a claimant gratuitously, the claimant is, nonetheless, entitled to recover as special damages an appropriate amount to enable payment to be made to the person or persons who provided the care. The issue is whether such damages are covered by the phrase "cost of care incurred".
44. Mr Allan argues that they are not, invoking the conclusions reached on this point in two Scottish cases. The first was Duffy v Lanarkshire Health Board [1998] SCLR 1142, and the second McCauley v Babcock Energy Ltd (28 May 1999), a decision of the Outer House of Session. In the former case the matter proceeded by agreement. In the latter case, Lord Kingarth in the Outer House said:

"The language of the relevant part of Schedule 2 is, I consider, quite inapt to cover an award under section 8 designed to represent 'reasonable remuneration' for services where no costs have actually been incurred by the injured party. Given further that the ultimate benefit of a section 8 award is intended to be received by the provider of services (standing on the obligation to account placed on the injured party under section 8(2), it cannot be said to be surprising that Parliament did not intend that such awards should be reduced by sums paid earlier to the injured party without obligation upon him to apply them in any way, and which in ordinary course would have been consumed by the date of my award."

45. Lord Kingarth went on to agree with the decision in Duffy.
46. Turner J did not agree with these Scottish decisions. He was influenced by the rationale for awarding special damages in relation to gratuitous care to be found in the decision of the House of Lords in Hunt v Severs [1994] 2 AC 350, a decision not referred to in the Scottish cases.
47. In Hunt v Severs Lord Bridge reviewed the relevant English authorities on this topic and drew attention to the position in Scotland, which is governed by legislation, namely, Part II of the Administration of Justice Act 1982, section 8, which provides:

"(1) Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sum as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith.

(2) The relative shall have no direct right of action in delict against the responsible person in respect of the services or expenses referred to in this section, but the injured person shall be under an obligation to account to the relative for any damages recovered from the responsible person under this section."

48. Lord Bridge continued:

"Thus, in both England and Scotland the law now ensures that an injured plaintiff may recover the reasonable value of gratuitous services rendered to him by way of voluntary care by a member of his family. Differences between the English common law route and the Scottish statutory route to this conclusion are, I think, rarely likely to be of practical importance, since in most cases the sum recovered will simply go to swell the family income. But it is nevertheless important to recognise that the underlying rationale of the English law, as all the cases before Donnelly v Joyce [1974] QB 454 demonstrate, is to enable the voluntary carer to receive proper recompense for his or her services and I would think it appropriate for the House to take the opportunity so far as possible to bring the law of the two countries into accord by adopting the view of Lord Denning MR in Cunningham v Harrison [1973] QB 942 that in England the injured plaintiff who recovers damages under this head should hold them on trust for the voluntary carer."

49. As I understand the reasoning of Turner J in applying Hunt v Severs to the present problem, it was as follows. Because the Claimant would be under a legal duty as trustee to pass on to the gratuitous carer the special damages paid in respect of care, these can properly be brought within the definition of "compensation for cost of care incurred" in column 1 of Schedule 2.
50. Mr Allan submitted that this interpretation is not legitimate. He submitted that cost of care cannot be said to be said to be "incurred" at the time that the care was provided if liability to pay the cost is contingent upon receipt of the special damages subsequently awarded in respect of the provision of care.
51. I do not accept this argument. I consider that, in the context of Schedule 2, "the cost of care incurred during the relevant period" extends to cover the cost of care provided during the relevant period in respect of which the Claimant has an obligation to reimburse the provider of the care contingent upon the receipt of damages awarded for this purpose.
52. I accept that this conclusion stretches the natural meaning of the phrase "compensation for cost of care incurred during the relevant period" to a degree. But it does not do so beyond the limit of what is legitimate if a purposive approach is given to the interpretation of the provision.
53. Turner J observed at paragraph 3 of his judgment:

"The object of this legislation is, plainly enough, on the one hand to avoid double recovery of benefits by a claimant and, on the other, to avoid loss to the State which has come under a statutory liability to pay benefit to the claimant as the result of the tortfeasor's wrong."

54. I agree with this conclusion. It would be contrary to the object of the statute and manifestly unjust if the compensator was not entitled to offset reimbursement of care benefits paid to the Secretary of State against liability to pay special damages in respect of care gratuitously provided. The effect of such a result would be as follows:

1. The compensator would have funded the benefits designed to enable the Claimant to pay for the cost of care.

2. The benefits paid would have been retained by the Claimant rather than paid to be provider of the care.

3. The compensator would then have to pay once again for the care provided.

55. Not merely would this amount to double recovery by a Claimant, it would be double recovery from the same source, the Defendant. I do not believe that the wording of the Schedule requires such a result. For these reasons I would dismiss this appeal.
56. LORD JUSTICE KENNEDY: I agree.
57. LORD JUSTICE DYSON: I also agree.
Order: Appeal dismissed with costs to be subject to detailed assessment. Application for permission to appeal to House of Lords refused. (Order does not form part of approved judgment)