INTERIM PAYMENTS AND THE LEVEL PLAYING FIELD: CLAIMANT OBTAINS PAYMENT DESPITE DEFENDANT’S CONCERNS

In Salwin v Shahed [2022] EWHC 1440 (QB) HHJ Pearce considered the appropriate sum to be paid to the claimant by way of interim payment. This case shows a very careful consideration of the “Eeles” criteria and the factors the court takes into account when determining the sum due under an interim payment. The judge also considered the “level playing field argument” and found that the defendant’s concerns were not sufficient to prevent an interim payment being made.

THE CASE

The claimant had been seriously injured in an accident.  Liability is agreed at 80% of recovery. The claimant had obtained interim payments in the past. He applied for a further interim payment of £175,000 or a higher sum. Primarily to fund ongoing care needs. The application was resisted by the defendant.  One of the grounds of objection was that the proposed care regime was unnecessary and would make the claimant over-dependent on the care provided.  The defendant argued that allowing an interim payment to fund this regime would lead an un-even playing field, the trial judge may find it difficult to overturn a care regime that is already in place.

THE JUDGMENT ON THE INTERIM PAYMENT APPLICATION

The judge considered the “level playing field” argument as the first issue.  He found that the defendant’s concerns were not sufficient to prevent an order being made.

47           The first issue to consider is whether an interim payment should be refused because of the “level playing field argument.” The concern expressed by the Defendant is that this interim payment is intended to be used to continue to fund a care regime which is simply beyond what the Claimant needs but more significantly is likely to hinder rather than help attempts at rehabilitation. The former point simply goes to the quantum of any order – the court should, on the Defendant’s argument, exercise particular caution in valuing the claim where there is such a discrepancy of opinion between experts. But the latter point goes further. As I have noted, Dr Crawford’s comments “I am concerned that the support is being used to provide company and will result in learned dependency.” If she is correct in this regard then an interim payment at the level sought by the Claimant will not simply be an overvaluation of the claim as it currently stands, it will lead to a position where the claim may increase in value because of the consequence of the learned dependency.

48           Against this though must be weighed the argument that, if Dr Crawford is incorrect and if in fact the Claimant’s case correctly identifies his reasonable needs as including care at the level now being claimed, he would suffer prejudice as a result of not receiving appropriate care and therapeutic input pending a trial that may be two years hence. This prejudice is at least as great as that which may be caused to the Defendant. In my judgment, this argument should not lead to a situation in which the court declines to make award of an interim payment at this stage. However, it remains relevant to the exercise of the appropriate caution under the Eeles test as to the amount of any award.

49           I turn to the next matter which is the extent to which the court should take into account losses that may accrue between now and the trial of this case as part of the measure of what is a reasonable proportion of those damages. The judgment of Yip J in PAL v Davison provides a principled approach to determining this. Since the very purpose of the claim for damages is a case such as this is to provide sums for rehabilitation and care both before and after trial, the inclusion of a reasonable figure to reflect the value of such claims in making the calculation under Stage 1 of Eeles is perfectly proper. However the court must be alert to the risk of over-compensating the Claimant or at the very least tying the hands of the trial judge as to the making of an appropriate periodical payments order. This is particularly likely to be so where (as here):

a.              The Claimant will only recover a proportion of his reasonable needs;

b.             There is a dispute as to what those needs are.

50           In considering on the length of time over which the calculation is made, one must bear in mind:

a.              The longer the period and therefore the higher the damages that are properly to be taken into account in calculating the interim payment, the greater the risk of over-compensation and/or tying the hands of the trial judge as to the terms of a periodical payments order;

b.             On the other hand, the shorter the period, the greater the risk that the Claimant will be driven to making a further application by the need for a further order to cover losses to trial.

51           In my judgment, the relevant factors here point towards one year’s anticipated future losses (calculated in accordance with Eeles on a cautious basis) to be brought into the equation:

a.              There is a genuine dispute as to Claimant’s appropriate care needs. In so far as any award of periodical payments is based on the Claimant’s assumptions as to those needs, there is a real risk of an excessively high award.

b.             The risk of overcompensation is particularly high because the Claimant will not recover the full value of his losses given the 80% settlement.

c.              The evidence before the court in support of the Claimant’s proposed care regime is not overly robust. Whilst I acknowledge the expertise of the Case Manager and the other therapists upon whom he has relied for the calculation of figures, such sources of evidence are not of the same quality as an expert whom it is proposed be instructed under CPR Part 35, since the various obligations of such experts and their greater independence from the Claimant than treating clinicians and therapists gives their opinion greater weight.

d.             Whilst the Claimant is not necessarily to be criticised for failing to have disclosed the opinions of proposed Part 35 experts on the care regime yet, given that the current regime has only recently been established, a period of around one year should give the Claimant the opportunity to obtain such evidence and to present it to the court should a further application for an interim payment be made.

e.              There is a risk that Dr Crawford has rightly identified the possibility of the Claimant learning dependency as a result of being provided with a care package that exceeds his needs. If the court is persuaded that the evidence before the court justifies a substantial care package at this stage, the shorter the period until that package is reviewed with better evidence, the less the likely prejudice to the Defendant and/or harm to the Claimant’s rehabilitation if she is correct.

f.               Whilst it would be unfortunate if there were two contested interim payment applications, one now and one in a year’s time, the possibility of that has to be weighted against the likelihood that, if better evidence is available in a year’s time, it is more likely that the parties will be able to reach agreement on any further application.

52           However, in approaching the issue of the interim payments on this basis, I bear in mind the increased uncertainty of the losses that may accrue over the next year. On the facts of this case, that uncertainty is met not only by the application of the usual caution in valuing damages for the purposes of Stage 1 of the Eeles test, but also by factoring in a larger discount in determining what is a “reasonable proportion” of the figure for losses over the next year than for losses already incurred.

53           I turn to the third issue in this case, the appropriate level of damages from which a reasonable proportion can be determined for the purpose of the ceiling of any interim payment contained in CPR25.7(4). In order to determine this, I consider the Claimant’s losses in two parts: losses to date and those that are likely to accrue over the next year.

54           In terms of losses to date, the parties’ positions are noted in the table above. As to the disputed items:

a.              The level of damages for pain, suffering and loss of amenity is the subject of considerable dispute. Having regard to the Sixteenth Edition of the Judicial College Guidelines for the Assessment of General Damages in personal Injury Cases, I agree with the submission for the Claimant that this injury probably lies at the upper end of moderate brain injury category or the lower end of the moderately serve category, which brackets meet at £219,070. Having regard to the Claimant’s other physical injures, the figure of £225,000 proposed by the Claimant is at the conservative end of the reasonable range.

b.             The claim for past loss of earnings at £17,000 per annum is a higher figure than the Claimant was earning before the accident, which was around £315 per week based on the PAYE P11 form, up to and including 2 June 2019. The Claimant seeks to justify the higher figure by wage inflation, but as against this must be balanced the risk that there could have been some disruption to his employment for reasons unrelated to the accident. The appropriate figure to take is the annualised equivalent of £315 per week, that is £16,380 per annum for the 3 years from the accident to date. From this figure needs be deducted post-accident sick pay of £5,775.30, according to Mr Allen, giving a net figure of £43,365.

c.              The claim for gratuitous care costs put by the Claimant of £10,000 per annum appears well within the range of what one would expect in a case with injuries of this severity. Whilst of course the Claimant has had most of his care needs met either by the institutions in which he has lived at no expense to him or more recently through the employment of commercial carers, I consider the figure of £10,000 in total for the last three years, as proposed by the Defendant to be very much on the low side. In contrast, the figure of £10,000 per annum proposed by the Claimant to be in the reasonably cautious range. I use the latter for the basis of this calculation.

d.             Like the Defendant, I share some surprise at the level of past case management fees. The Claimant points out that this head of loss relates to past expenses that have actually been incurred. He contends that there is not even the beginnings of an argument that he has failed reasonably to mitigate his loss and/or that these losses are not properly to be treated as being caused by the accident, on account of some new intervening cause. Whilst such a case has not yet been formulated, when exercising the cautious approach required pursuant to Eeles, it is appropriate for the court to reduce heads of loss, even relating to past losses, where these on their face look arguably excessive. Taking this approach, I accept the Defendant’s figure of £50,000 as being in the reasonably cautious range.

e.              Whilst the Defendant was not presented with estimated accommodation and deputyship costs in advance of the hearing and can have some legitimate complaint that he had no opportunity to consider these heads of loss, the figures proposed by the Claimant are eminently reasonable for a case of this nature, subject to the argument that the Claimant would have incurred some accommodation costs (which I estimate at £800 per month or £9,600 per annum) in any event.

55           Accordingly, I would consider a cautious valuation of these heads of loss to be as follows:

56           Allowing for the discount for the liability settlement, the value of these heads totals £427,828. Given the cautious way on which these heads of loss have ben approached (in some cases there being no formulated criticism to the figures claimed and in some others, taking the Defendant’s figures), the Court can have a high degree of confidence that the sum allowed for these heads of loss will be close to that set out above. Correspondingly, the reasonable proportion of these losses for the purpose of CPR 25.7 is a high one, in my judgment around 90%. I would therefore value these heads of loss for interim payment purposes at £385,045.

57           Turning to losses over the next year, I have noted the considerable dispute over the Claimant’s proposed care and support regime. My provisional view on the material before me is that the Defendant’s case significantly understates the likely care needs over the next year. Whilst its figures are supported by experts who are likely to be instructed pursuant to CPR Part 35, there is little analysis therein of the Claimant’s injuries and his consequent needs. Whilst it is correct that the case management records produced do not support the conclusion that the Claimant has in fact been involved in incidents where there has been a serious risk of harm sufficient to justify a 24 hour care regime, there is clear reference to events that could have escalated to a more serious situation [10]. It is reasonably arguable, as contended for by the Claimant, that it is the very fact of the supportive regime that is in place that has prevented more serious consequences from developing.

58           On the other hand, the claim for a 24 hour care package, even over the next 12 months, seems to be in excess of what is likely to be required. Indeed, the reduction of support for the Claimant appears to be advocated generally as a means to develop his independence. To give virtually the full cost of 24 hour care for 12 months appears excessive.

59           Doing the best I can, I take the current care regime and assume that it gradually reduces over the next year so that, by one year hence, the Claimant is having no night care and one half of the day support that he now has. The value of that claim can be estimated using Ms Lodge’s figures as follows:

a.               The annual cost of day care as claimed is (£2,056 + £918.40) x 52 + £1,028 + £1233.60 = £156,930.40. The gradual reduction of that so that only 50% of such care is required in a year’s time is 75% of that figure, £117,698.

b.             The annual cost of night care is (£760 + £304) x 52 + £380 + £456 = £56,134. The gradual reduction of this so that none of this care is required in a year’s time is 50% of that figure, £28,067.

60           Thus, in my judgment, the care claim over the next year can be valued at about £145,746. To this should be added other expenses over the next year, reflecting either my assessment of these losses as past losses above or the Defendant’s concession that these are reasonable figure to take for the purpose of this exercise.

61           The value of these losses after the liability discount is £309,965. However, these losses are necessarily less certain than past losses. I cannot have the same confidence as to their likely recovery as I do in respect of the losses already incurred. Apart from the dispute as to the proper care regime, there has been no examination at this stage of the detail of the proposed therapeutic costs and caution is therefore necessary.

62           In my judgment, the appropriate discount to apply to them to come to what is a reasonable proportion is one third. I accordingly I allow two thirds of this figure, that is £206,643.

63           It follows from my analysis that the sum of £591,688 (£385,045 under paragraph 56 above and £206,643 under paragraph 62) represents the maximum that is now available by way of total interim payment under CPR 25.7. Since payments of £422,000 have already been made, the Claimant can reasonably argue for a further figure of £169,688, say for the sake of simplicity £170,000.

64           The manner in which an interim payment is used is not a primary consideration for the court in determining whether such a payment is made. Therefore I am minded to make an order in this amount. I am fortified in the view that such an order is appropriate by the following:

a.              It is highly likely that the Claimant will recover for loss of earnings or at the very least lost of earning capacity beyond the period of one year into the future, the ultimate level of damages will probably be higher than the gross equivalent of the total of interim payments including the award of a further £170,000, that is to say £746,000 [11]. Thus it is unlikely that the Claimant will be over compensated.

b.             Whilst an excessive award by way of interim payment can restrict the trial judge’s power to make a periodical payments order, the reality is that, unless the Claimant has a significant claim for future therapies, care, case management and/or deputy costs, a periodical payments order would be unlikely in a case involving only 80% recovery.

c.              Since the interim payment that I am able to make is not based on the assumption of around the clock support for the next year and, on the available figures, would clearly not finance that as well as the appropriate therapies and other costs, there is only a small risk of the Defendant’s fear coming to pass that he may be subject to an inappropriate regime that actually increases his dependency and therefore his compensation claim such as to tilt the playing field unduly against the Defendant.

d.             The Claimant would be put in a very difficult if no further interim payment were awarded at this stage since the case manager’s plan for future care and therapies would have to be abandoned. It is not clear what would be put in its place. If a trial judge were faced with a choice between capitalising future losses to provide current rehabilitation (which on the Defendant’s case should, if properly targeted, reduce the value of the claim), it is probable that the Judge would capitalise the losses so as to provide for the Claimant’s current needs. Thus, if I am wrong in my calculation of the stage 1 Eeles valuation in this case, this award is arguably justified under Stage 2 of the Eeles approach.

Conclusion

65           In conclusion, I am satisfied that the maximum further interim payment that can properly be made on the material before the court is £170,000. In the circumstances, I consider it appropriate to make an order in that sum. The relevant sum due to the Compensation Recovery Unit will need to be deducted from that sun before payment of the net amount.

66           It goes without saying that the valuation that I have attempted for the purpose of this application is based on the material currently available and is necessarily based on less than complete evidence and a number of assumptions. It is not intended to bind the court on any future occasion, even in so far as it relates to losses that the Claimant contends he has already suffered.

67           I acknowledge that the Claimant may have a good argument for a further interim payment. Whilst the application has supposed that it covers his reasonable needs over the next 12 months valued on a cautious basis, he may in fact be able to produce evidence that the assumptions that I have made are unduly cautious and that a further interim payment is needed sooner than this. However, given the dispute as to the appropriate level of support for his future needs, I would expect such an application to be supported by the opinion of independent experts.