INTERIM PAYMENTS WHERE ONLY 50% OF DAMAGES ARE LIKELY TO BE RECOVERED: IS A HEAD OF FUTURE LOSS LIKELY TO BE CAPITALISED?

In Lexi-Rae Speirs v St Georges University Hospitals NHS Foundation Trust [2025] EWHC 337 (KB) Senior Master Cook considered the question of how the court should approach an application for an interim payment in a case where the claimant was only going to recover 50% of the damages claimed.  The judge concluded that the court had (i) to be satisfied that there was a need for the interim payment; (ii) that the trial judge was likely to capitalise a head of damage for future loss.  In this case it was held that the claim for loss of future earnings was likely to be capitalised and an interim payment made on that basis. It was, however, likely to be the last interim payment made in the case.

“… it is almost inevitable that a proportion of the Claimant’s future losses will have to be utilised to offset past expenditure given her current needs and the fact of 50% recovery. It seems to me that the only realistic candidate for consideration is the future loss of earnings claim.”

THE CASE

The claimant brings an action for clinical negligence arising from her birth in 2008.  In 2014 the court approved a liability apportionment of 50%.  Because of uncertainty of the medical condition there had been a stay of the action. That stay was lifted and the matter is listed through to a directions trial with the trial window being between October – December 2026.  The claimant applied further interim payment of £219,380 which would take the total amount of interim payments to £559,380.  The claimant conceded that the interim payment sought exceeded the “Eeles” stage 1 test – that is the likely sums for pain and suffering, past losses and interest.

THE ISSUES

The Master firstly considered the claimant’s reasonable needs to the date of trial, and assessed these at £99,196.  The next question was whether, given the 50% recoverability, the trial judge was likely to capitalise any future heads of damage and whether there was a “real need” for the interim payment.

THE JUDGMENT

62. Before considering whether a judge would be likely to capitalise heads of future damage I will set out my conclusion as to the level of interim payment the Claimant reasonably requires for her needs to the date of trial.

63. Rent for the House. I consider that it is highly unlikely this head of loss will be recovered in full, even on the basis of the Claimant’s mother’s contribution of £1,000 per calendar month. Mr Woolf KC’s submission that credit should be given for the full amount of the ‘but for’ rental which the Claimant’s mother now accepts is £12,000 p.a. is a potentially good one and may well be accepted by the trial judge. However at present there is no other source of funding and so I would allow the £24,150 claimed.

64. Therapies. I think it is certainly arguable that the therapeutic input is higher than necessary and must be more focused particularly the figure for occupational therapy. I would allow the figure of £15,364 put forward by Mr Woolf KC.

65. Paid Care. I think the sums claimed for the Case Manager, Deputy and Costs draughtsman are reasonable. The sum claimed for the Support Worker do seem to be to be excessive, particularly having regard to the observations of Dr Tonks concerning supervision of the Claimant for transport purposes. I would allow the total figure of £42,000 put forward by Mr Woolf KC.

66. Gratuitous care. It is a matter for the Claimant’s mother how the award for gratuitous care is actually utilised. I have no doubt that the Claimant’s mother now provides care over and above that she would otherwise have provided. This fact is accepted by the Defendant. I would allow the figure of £17,682 put forward by Mr Woolf KC as being reasonable.

67. I have therefore concluded that the Claimant reasonably requires the sum of £99,196 to the date of trial. In order to fund such an interim payment I must be satisfied that there is a future head of loss that a judge would be likely to capitalise and that there would be at least £106,746 available from that source.

68. Mr Woolf KC was at pains to point out that Ms Levison’s observations concerning her experience with similar cases was no sound basis for the court to conclude that the NHS was unlikely to offer a PPO for future loss of earnings. I am also conscious of the warning given in Eeles not to speculate what a trial judge may do in relation the capitalisation of future heads of loss.

69. As I have pointed out it is almost inevitable that a proportion of the Claimant’s future losses will have to be utilised to offset past expenditure given her current needs and the fact of 50% recovery. It seems to me that the only realistic candidate for consideration is the future loss of earnings claim.

70. The full value of the future loss of earnings claim is put at £928,661. I accept this figure is calculated on the basis of very favourable assumptions as to the Claimant’s working life and residual earning capacity. Taking a suitably robust approach to these issues I have concluded that a conservative valuation of £500,000 for this head of claim could be supported. This would provide a sum of £250,000 after the 50% reduction for liability.

71. In the circumstances, I am persuaded to order a further interim payment of no more than £99,196. I would ask that Counsel prepare an appropriate form of order.

Post script – The position of the Deputy

72. I have underlined the difficult nature of the decisions that the Deputy has to make in this case. I have drawn to her attention the fact that she is associated with the firm conducting this litigation. I have no current basis to criticise the decisions or conduct of the Deputy. The Deputy is subject to supervision of the Office of the Public Guardian and it is the legal responsibility of the Deputy to present a financial report to the OPG each year.

73. In the circumstances, I direct that a copy of this judgment is provided to the Deputy so that she is fully informed as to the reasons for the Court’s decision and its view on recoverability. Given the features of this claim that I have identified, it is extremely unlikely that any further interim payment will be approved.