England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
MR JUSTICE FOSKETT
HQ03X03749

		Royal Courts of Justice Strand, London, WC2A 2LL
		13/03/2009

Lady Justice Smith: This is the judgment of the court.

Introduction

1. This appeal raises the question of what is the correct approach to the making of an interim payment in a heavy personal injury claim where the damages, when finally assessed, are likely to include one or more periodical payments orders pursuant to section 2 of the Damages Act 1996 as amended by the Courts Act 2003.
2. CPR Part 25.6 makes general provision for applications for interim payment orders and CPR Part 25.7 specifies the conditions to be satisfied and matters to be taken into account when the court is considering whether to make such an order. The claimant must show first that he has obtained judgment or would, at trial, obtain judgment for a substantial amount of money against an insured defendant or public body. Then, at CPR 25.7(4), comes the provision which is important in the context of this appeal:

"The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment."

3. Prior to the amendment of the Damages Act, practice in this area of the law had become well-established. We can summarise the position by saying that the judge would usually make a conservative preliminary estimate of the likely final award. For that he would need both sides' schedules of loss, in so far as they could be provided at that stage. He would have to make a broad assessment of the merits of each side's contention and would err on the side of caution. He would order an interim payment which allowed a comfortable margin (or headroom) in case his preliminary estimate turned out to be too generous.
4. Before making an order, the court would not necessarily need to enquire as to what the claimant intended to do with the interim payment: Stringman v McArdle [1993] 1 WLR 1653. If of full age and capacity, the claimant would be entitled to do with it as he wished. If he was a minor or patient, control of the money would be exercised by the Court of Protection. Nonetheless, claimants often wished to explain why they wanted a particular sum at the time. Typically, a claimant might want to demonstrate the need to buy or adapt accommodation or to provide a care regime. He might wish to demonstrate the need for such a facility in order to show that the final award would be of sufficient size to warrant the making of an interim payment of the amount sought. Judges were warned against making an interim award which would have the effect of creating a status quo in the claimant's way of life which might have the effect of inhibiting the trial judge's freedom of decision; it was said that such an order might create 'an unlevel playing field': see Campbell v Mylchreest [1999] PIQR Q17.
5. With the rise in the value of claims for severe injuries, it has become quite common for very substantial interim payments to be made, based upon a reasonable proportion of the likely amount of the final capital award. However, under the amended Damages Act it became possible for a judge to make a periodical payments order (PPO) in respect of some or all of the heads of future loss, index-linked to reflect future changes in the value of money and continuing for the whole of the claimant's actual life. Since this Court in Tameside & Glossop Acute Services NHS Trust v Thompstone [2008] EWCA Civ 5 affirmed that, when making a PPO, the court had the power to apply whatever index was most appropriate to the head of loss concerned, the benefits of a PPO have been generally recognised and such orders are now routinely made.
6. When considering how to allocate the various heads of future loss between a capital award and one or more PPOs, the trial judge has to consider what allocation will best meet the claimant's needs: see CPR Part 41.7 and paragraph 107 of Thompstone. The trial judge's task is to weigh the various aspects of the claimant's needs, in the light of the sums which are to be awarded under each head of loss and in the light of the available financial advice.
7. If a PPO is made, the capital sum ordered at the final hearing will obviously be less (probably much less) than the capitalised full value of the claim. CPR 25.7(4) has not been amended in the light of the PPO provisions so, on applications for an interim payment, judges have been left to apply that provision to a case in which a PPO might be made.
8. In the present case, the claimant sought an interim payment order for £1.2 million. He had previously received interim payments of £450,000. Foskett J conservatively estimated the total capitalised value of the claim at £3.5 million. Notwithstanding his recognition that the trial judge might wish to make a PPO for some heads of damage, he made the order as requested. In this appeal the defendant submits that that approach was wrong in principle and also ran counter to such persuasive authority as was cited to the judge.

Judicial approaches prior to the present case.

9. It is convenient at this stage to consider the two authorities cited to Foskett J. The first reported case in which the effect of a PPO has on the jurisdiction to make an interim payment was Mealing v Chelsea v Westminster NHS Trust [2007] EWHC 3254 (QB). The claimant had already received over £773,000 in interim payments and now sought a further £1 million. The claimant valued her claim at about £17 million. The defendant claimed that this was grossly inflated. One of the arguments advanced by the defendant in opposing the application was that an interim payment of the magnitude sought would fetter the trial judge's freedom when deciding how to allocate the award between capital and PPO.
10. Swift J made a very broad estimate of the likely capital value of the claim at between £6 and £9 million. That sum, as she observed, would readily justify a further interim payment of £1 million. However, she considered that such a payment would or might fetter the freedom of the trial judge to allocate as large a proportion of the award to PPOs as he or she considered appropriate. However, because the claimant needed money to pay her carers, Swift J awarded a further £250,000 saying that she was satisfied that such a sum (taken with the earlier sums) would not unduly fetter the trial judge's freedom of allocation.
11. In Braithwaite v Homerton University Hospitals NHS Foundation Trust [2008] EWHC 353 (QB), Stanley Burnton J (as he then was) made an interim award of £850,000 to a badly injured claimant who urgently needed money to provide suitable accommodation. The full capitalised value of the claim was of the order of £3.6 million and, as Stanley Burnton J observed, if the final order were to be simply a lump sum, there would be no difficulty in ordering an interim payment of £850,000. However, it was clear that the trial judge might wish to make one or more PPOs. Stanley Burnton J's approach was to calculate which parts of the claim were bound to be awarded as a lump sum. These were past losses and damages for pain and suffering with interest on both. Prima facie, that was the sum which was available to him for consideration of CPR Part 25.7(4). He concluded that those heads might not even amount to £850,000 and, taken alone, were plainly not enough to permit an interim payment of £850,000.
12. However, he considered that, in deciding the likely amount of the final judgment, he was entitled to predict what allocation as between capital and PPO the trial judge would make. On the facts of that case, there was really no dispute that the claimant had an urgent need for accommodation. So, Stanley Burnton J concluded that he could confidently predict that the trial judge would eventually allocate a sufficient capital sum to enable the claimant to buy a suitable property. That sum would be significantly in excess of £850,000. Accordingly, he had jurisdiction to order an interim payment of that sum and he exercised his discretion so to do.

The factual background to the present appeal

13. The claimant, Benjamin Eeles, was born in November 1997 and suffered a serious head injury in a car accident in 1998 when he was only 9 months old. He is now 11. He has made a good physical recovery from the effects of the accident and now has reasonable motor coordination; he can walk independently although somewhat clumsily. His fine motor skills are impaired but he can dress himself and do most every day tasks. His main difficulties are with cognition and intellect. He has learning difficulties and attends a school for children with special needs. He has poor memory and concentration, difficulties with multi-tasking and information processing and an inability to organise himself without constant reminders. He also has some communication difficulties. He will never be able to lead a fully independent life but will require supervision and some care. He is very unlikely ever to be gainfully employed. He requires and will continue to require a wide range of therapies, including physiotherapy, occupational therapy and speech therapy. He will always lack the capacity to manage his own affairs. His life expectancy is not reduced.
14. Liability was never disputed by the defendant and judgment for damages to be assessed was entered in April 2004. In the intervening years, the claimant has received interim payments amounting to £450,000. Ben is still developing and his legal team have taken the view that it will not be possible to quantify his claim until about 2010. The parties are working towards a final hearing in that year.
15. Ben was his parents' first child. Soon after his birth, the family moved into a five bed-roomed house which they intended would be their family home for the indefinite future. By 2004, the parents had decided that it was necessary to build an extension to the house to provide a therapy room for Ben. A significant proportion of the past interim payments were expended on that and it was finished in 2007. In 2007, a second child was born to the family.
16. At some stage, the parents (with the support of some of the claimant's medical advisers) concluded that, in the longer term, the existing family home would not provide sufficient room for the family and for Ben's increasing needs. However, substantial family houses are not plentiful in the village of Brightlingsea in which they live. But, in 2008, a substantial dwelling, Brightlingsea Hall, came onto the market. It had formerly been an hotel; it has 9 bedrooms and a separate bungalow in the grounds. They regarded this as a unique opportunity to buy a suitable home. They felt that they must move quickly. The asking price was £840,000 and the estimated cost of refurbishment was £200,000. With the costs of purchase, the parents estimated that they needed £1.2 million. The mother, who is the claimant's litigation friend, applied for an interim payment in that sum.

The claim for a further £1.2 million as interim payment

17. One of the difficulties facing the claimant and indeed the judge in dealing with this application was that the claimant's team had not yet been able properly to quantify the claim. At the start of the hearing, the claimant had not produced a schedule of estimated loss. The witness statement of the claimant's solicitor, in support of the application, estimated damages for pain, suffering and loss of amenity at £150,000 and said that past losses amounted to about £158,000. She said that future loss of earnings would be at least £800,000 and gave a broad brush estimate of the total capital value at £5 million. She also relied, for a conservative estimate of the total capitalised value of the claim, on an offer from the defendant, made in 2007, to settle the claim for £3.25 million. In fact that offer had been expressed as a lump sum of £3.25 million or a lump sum of £750,000 plus a PPO of £75,000 per annum.
18. For the hearing of the application, the defendant put in a schedule of estimated loss, in so far as it was able to on the available information. It estimated damages for pain suffering and loss of amenity at £100,000 and past losses at about £260,000. As to future losses, the defendant contended that PPOs were likely in respect of care and case management. In respect of all other future losses, the defendant advanced valuations on an annual basis capitalised at what it said were appropriate multipliers. If loss of earnings were to be excluded (on the basis that a PPO was likely), the capital sum likely to be awarded at trial was of the order of £700,000. If loss of future earnings were to be included in the capital sum, the likely capital award at trial would be about £1.1 million. On that basis, the defendant submitted that there was no jurisdiction to make a further interim payment of £1.2 million (which would bring the total interim payments to £1.65 million) as that sum would exceed the likely amount of the capital award at trial. Such an interim award would be bound to fetter the judge's freedom to allocate the future losses as he thought fit.
19. It appears that the claimant's submission was that there was a general discretion to award such interim payment as would best meet the claimant's current needs, even if the award sought might limit the trial judge's freedom to allocate the awards of future loss to capital and PPO as he thought would best meet the claimant's needs.
20. During the hearing, the parties prepared a handwritten schedule showing each side's contentions as to the likely valuation of the claim. The defendant's side was similar although not identical to the schedule put in earlier. The claimant's side was less complete than the defendant's; no figures were advanced for therapies, holidays or Court of Protection costs. Neither side advanced any figures for the costs of care or case management. The claimant included a Roberts v Johnstone calculation of accommodation costs on the assumption that the purchase and refurbishment of Brightlingsea Hall was a reasonable expenditure. That came to £728,000 and far exceeded the defendant's estimate under that head of £140,000. The claimant's figure for loss of future earnings was almost twice the defendant's, about £800,000 as opposed to £440,000.

The judgment below

21. In his judgment, Foskett J did not refer to the joint schedule in any detail. His approach was first to remind himself that he should not make an order for more than a reasonable proportion of the likely amount of the final award (CPR 25.7(4)). He also said that there was an overall requirement that, if an order is made, it should be for such amount 'as the court thinks just'. He reminded himself of the general principles to be derived from the old cases decided before the amended Damages Act came into force and PPOs could be made.
22. He then made a conservative valuation of the overall capital value of the claim at £3.5 million, basing it upon the defendant's 2007 offer of £3.25 million and applying a modest increase. He then observed that the application for a further £1.2 million would, if granted, bring the total interim payments to just less than one half the full value of the claim. That would not exceed a reasonable proportion of the likely award.
23. The judge then referred to the defendant's argument that such an interim award might tie the hands of the trial judge who might want to make a substantial PPO. He said that he was mindful of what Stanley Burnton J had said in Braithwaite. But, he continued at paragraph 18:

"However, as I have said, each case depends on its own facts. Tying up too much capital at this stage might, and I emphasise the word might, inhibit the court at trial from making as large an immediate order for periodical payments as might otherwise have been the case. But the capital that might have thus been utilised to provide the periodical payments order has not been sacrificed for all time. It is invested, or will be invested, in an asset which can, if necessary, particularly when, as in the case of Ben, he is much older, be realised to provide an additional source of income. So that point has less force certainly in this case that it might have done provided, of course, the capital has been invested wisely in the property purchased."

24. That passage, in effect, disposed of the argument about tying the trial judge's hands. The judge then turned to consider the family's wish to purchase the property. He observed that, if the claimant's mother were right, this was a unique opportunity to acquire a property suitable for Ben in an area where such properties were rare. He decided that he should not stand in the way of the family's wish to proceed but emphasised that it would be for the Court of Protection to decide whether the project was in Ben's best interests. He stressed that he was not deciding that the family should embark upon the project and he was not giving it his seal of approval. He would order the interim payment as requested. It would be for the Court of Protection to decide whether the project should proceed and, if it did, it would be for the trial judge to decide whether the expenditure had been reasonable.

The appeal

25. Before this court, Mr Simeon Maskrey QC for the appellant, submitted that the judge had made an order which was beyond his jurisdiction. He had never considered what capital sum was likely to be awarded at the trial so he had never been in a position to decide upon a reasonable proportion of that sum. It appeared that he had used the full capitalised value of the claim (£3.5 million) as the sum likely to be awarded at trial. That was wrong because it was common ground and obvious that, in a case such as this, the trial judge was very likely to wish to make a PPO. The judge had not undertaken the essential process of assessment as described by Stanley Burnton J in Braithwaite.
26. Further, if the judge had examined the schedule put in, as he should have done, he would have been bound to find that the likely capital award at trial would not be large enough to justify total interim payments of £1.65 million.
27. Mr Maskrey was also critical of the judge's reasoning in paragraph 18 of his judgment, which we have quoted at paragraph 23 above. He submitted that the judge had missed the point of the need to avoid fettering the trial judge's freedom. The trial judge had to be free to allocate the future losses in the way that would best meet the claimant's needs. Once the capital had been utilised, it could not be clawed back so as to support a PPO. The fact that the capital sum might have been well invested and might at some future time be sold so as to provide an income stream was no answer to the defendant's submission. The effect of this order was that the trial judge's hands had been tied.
28. Mr William Braithwaite QC for the respondent began his submissions by seeking to put in evidence the report of an independent financial adviser which had not been put before the judge. Each member of the court had read the report de bene esse. We decided to refuse to admit it. The report could have been obtained prior to the application before the judge. Second, although, of course, the evidence was capable of belief, having read it, we do not consider that its admission would be capable of having a significant effect on the outcome of the appeal. We would add that, as Mr Braithwaite conceded, it will only be in an exceptional case that it is appropriate for reports of this kind to be placed before the court on an application for an interim payment.
29. Mr Braithwaite's substantive submission was that the judge's approach had been permissible and entirely appropriate. The jurisdiction to make an interim payment order was a broad discretionary power to do what was in the claimant's best interests at the material time. It should not be limited by any 'hard-edged rules'.

Discussion

30. We are quite satisfied that, although the power to order an interim payment is a discretionary power, there is not an unfettered discretion. The discretion is limited at the upper end by CPR 25.7(4). The court has no power to make an order for more than a reasonable proportion of the likely amount of the final judgment. It is true that the expression 'reasonable proportion' leaves the precise limits of the jurisdiction somewhat uncertain. But, for present purposes, it is sufficient to say that there is clearly no jurisdiction to order an interim payment of more than the likely amount of the final judgment.
31. In a case in which a PPO is made, the amount of the final judgment is the actual capital sum awarded. It does not include the notional capitalised value of the PPO, which sum is irrelevant for the purposes of determining an interim payment in a case of this kind. Stanley Burnton J's approach in Braithwaite was correct. Here, the judge appears to have taken the (conservatively estimated) full capital value of the claim as the basis for his consideration of an interim payment. In the days before PPOs, that was of course, the correct approach. In a case in which a PPO might be made, that is no longer correct. We accept Mr Maskrey's submission to that effect.
32. We also accept Mr Maskrey's submission that, at his paragraph 18, the judge misunderstood and underestimated the importance of not fettering the trial judge's freedom to allocate the heads of future loss. The fact that the capital sum ordered might be invested wisely and might be realised later misses the point about the importance of the trial judge's freedom to make an appropriate PPO. A PPO has the potential to provide real security for a claimant for the whole of his life. Of course, there will be a tension between the claimant's need for an immediate capital sum and the desirability of the security of a substantial PPO. That tension cannot usually be properly resolved until the trial judge knows what sums are actually to be awarded under each head of damage and has financial advice available to him. At the interim payment stage, the judge does not have those materials. If the judge makes too large an interim payment, that sum is lost for all time for the purposes of founding a PPO. It cannot be put back into the pot from which the trial judge will allocate the damages.
33. For those reasons, we would accept Mr Maskrey's submission that the judge erred in his approach. He never carried out the essential task of estimating the likely amount of the final judgment. Accordingly, his decision must be set aside and we must make the decision ourselves.
34. In the course of the hearing, counsel took us through the joint schedule of losses. Mr Maskrey submitted that, if we were to assess the likely amount of the final judgment we should focus on the defendant's figures. That was so first because the judge himself had used the defendant's overall estimate of value as his baseline. In any event, we ought to make a conservative estimate so that where there is a significant difference between the parties, it is safer to rely on the defendant's contention.
35. We would not necessarily accept that a judge considering an interim payment must always work on the defendant's figures. Sometimes there are good reasons why those figures should be rejected as too low. But in this case, there is a wide margin of contention between the parties. The claimant's figures are not supported by evidence and it appears to us that we should base our decision generally on the defendant's estimates.
36. Our first task is to ask what is likely to be awarded for the heads of damage which are bound to be ordered as lump sums. They are general damages and past losses with interest on both. Unfortunately the schedule does not include interest but doing the best we can, it appears that, on the defendant's figures, there must be a capital award of at least £450,000. It was common ground before us (and we accept) that it is very common indeed for accommodation costs to be awarded as a lump sum, even including those elements which relate to the future running costs. As we have said, the claimant's figure for accommodation is based on the purchase of Brightlingsea Hall. For present purposes, we are not prepared to assume that the trial judge would hold that that purchase was reasonably necessary to meet the claimant's needs and accordingly we take the defendant's estimate of £140,000. That means that we are satisfied that there is likely to be a capital award of at least £590,000.
37. All the other heads of damage (future loss of earnings, costs of care, case management, therapies, equipment, increased holiday costs, and Court of Protection costs) are potentially the subject of PPOs. We would accept that recent practice in PPO cases suggests that it is unusual for all those heads of damage to be the subject to a PPO. For the purposes of argument in this case, the defendant was prepared to accept that the trial judge would probably capitalise not only the accommodation costs but also future cost of therapies, equipment and Court of Protection fees. We are not sure that any such concession should be made. For the purposes of an interim payment application, the judge should not normally begin to speculate about how the trial judge will allocate the damages. As a rule, he should stop at the figure which he is satisfied is likely to be awarded as a capital sum. He may award a reasonable proportion of that figure. It may be reasonable to award a high proportion of that figure, provided that the estimate has been a conservative one.
38. However there will be cases (Braithwaite was one such) in which the judge at the interim payment stage will be able confidently to predict that the trial judge will capitalise additional elements of the future loss so as to produce a greater lump sum award. In such a case, a larger interim payment can be justified. Those will be cases in which the claimant can clearly demonstrate a need for an immediate capital sum, probably to fund the purchase of accommodation. In our view, before a judge at the interim payment stage encroaches on the trial judge's freedom to allocate, he should have a high degree of confidence that such a course is appropriate and that the trial judge will endorse the capitalisation undertaken.
39. We apply those principles to the facts of the present case. Although the mother is acting in what she perceives to be Ben's best interests, an objective assessment leads us to the view that the claimant has not clearly demonstrated a present need to buy Brightlingsea Hall or indeed any other substantial property. He is well housed at present and has a therapy room provided by past interim payments. It may well be that, in the medium or longer term, a larger house may be justified. But there is no need for that move to be made before the trial judge has had the opportunity to consider the accommodation issue in 2010. We can see that it is quite likely that Brightlingsea Hall will not then be available for purchase. (We note however, that it is still on the market 9 months after it was first identified as a potential purchase by the claimant's parents). However, we do not consider that the scarcity of large properties in Brightlingsea should be regarded as the determining factor. Although we accept that the family may, at some time in future, need a larger house, it is not at all clear to us that they will need a house as large as the Hall. There is a real danger that, if the Hall is purchased, a 'status quo' will have been established before the trial and the playing field will have been rendered uneven, in the way anticipated in Mylchreest.
40. Accordingly, it is our view that, in this case, any additional interim payment must be considered by reference to the likely amount of the final judgment, leaving aside all the heads of future loss which the trial judge might wish to allocate to a PPO. As our estimate of the likely amount of the capital award is only £590.000, there is very little room for a further interim payment. Certainly the sum of £1.2 million cannot be awarded. We asked Mr Braithwaite whether the claimant was in need of a further modest award to fund his care and therapy regimes but were told that there was no immediate such need and, if there were, a fresh (and quite different) application would be made.
41. For those reasons the appeal must be allowed and the application for a further interim payment of £1.2 million must be refused.
42. Before leaving this case, we wish to summarise the approach which a judge should take when considering whether to make an interim payment in a case in which the trial judge may wish to make a PPO. We also wish to clarify the roles of the judge and the Court of Protection, as it appears to us that Foskett J may not have properly appreciated their respective roles.
43. The judge's first task is to assess the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. Strictly speaking, the assessment should comprise only special damages to date and damages for pain, suffering and loss of amenity, with interest on both. However, we consider that the practice of awarding accommodation costs (including future running costs) as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award. The assessment should be carried out on a conservative basis. Save in the circumstances discussed below, the interim payment will be a reasonable proportion of that assessment. A reasonable proportion may well be a high proportion, provided that the assessment has been conservative. The objective is not to keep the claimant out of his money but to avoid any risk of over-payment.
44. For this part of the process, the judge need have no regard as to what the claimant intends to do with the money. If he is of full age and capacity, he may spend it as he will; if not, expenditure will be controlled by the Court of Protection.
45. We turn to the circumstances in which the judge will be entitled to include in his assessment of the likely amount of the final judgment additional elements of future loss. That can be done when the judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone. We endorse the approach of Stanley Burnton J in Braithwaite. Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested. For example, where the request is for money to buy a house, he 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. He 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 at such a level as will permit the making of the necessary interim award.