CASE REPORT
Application for interim payment
Defence arguments
Award of £265,000
1. Sam Downing was born on the 17th September 1988 and so was 10
at the date of the accident on the 28th April 1999.
2. Liability was agreed at 50% (in a round table consultation with silks either
side).
3. An application for an interim payment was heard by His Honour Judge MacDuff
QC in February 2004. The Claimant sought £250,000 to £300,000, whereas the Defendant
conceded only £25,000.
4. The Claimant lives with his parents, who have provided all the care needed
by him since the date of the accident; "... the parents are a remarkable couple
who have devoted themselves to making the necessary provision for their son".
The family home in the Midlands is entirely unsuitable, and the family have
decided to move back to Shetland, where they will build a bungalow for Sam and
the family. Initially, it seemed that the Defendant would contend that this
decision was unreasonable, but that argument was not pursued.
5. Judge MacDuff emphasised that, subject to quantification, the money was the
Claimant's, to do with as he pleases (Stringman v McCardle [1994] 1 WLR
1653); "Prima facie ... the court can and should allow him to have as much
of his money as he wants, provided that the interim amount does not exceed the
final award". It was suggested on behalf of the Claimant that the final award
would be well in excess of £1 million (half a million with the 50% compromise),
but "within the evidence produced by the Defendant , no valuation at all has
been suggested".
6. The defence case had two main thrusts, although most available arguments
were pursued or canvassed. First, reliance was placed on Campbell v Mylchreest
(unreported Court of Appeal 23/1/98), that the court should have in mind
whether an interim payment would enable the financing of expenditure which,
once undertaken, would disturb the fair balance (level playing field) between
the parties. The judge noted the remarks in Campbell that "the level
playing field argument can never be an absolute bar to an interim payment ...
only a factor for the judge to have in mind when exercising his discretion".
The defence argument centred mainly on their fear of a "Rolls Royce" care regime,
and less on the bungalow. Interestingly, the judge felt that the fact that this
was a 50% recovery weighed against this argument, because the Claimant would
be unwise and unwilling to expend large sums on professional carers, knowing
that he would recover only 50% of the cost; this is the reverse of the argument
often put forward by defendants, that, because the recovery is only 50%, the
claimant will not in fact spend it on a good care regime.
7. The Defendant argued that the final award for the increased cost of housing
is likely to be small, or even nil.
8. The second main argument was that, at trial, a judge might be persuaded to
award little or nothing for future care, relying on Sowden v Lodge
and Crookdake v Drury (see the article on my web site). The defence
argument is always (as it was here) that, because the State is under a duty
to provide care without cost to the claimant, therefore the claimant will be
cared for in that way, and there will be no cost to him or her. I have seen
this point succeed once (but only once), where the claimant really was being
looked after by the local primary care trust, with sufficient, good quality
care. The judge said: "It is trite law to state that the Claimant is entitled,
if he reasonably so chooses, to employ privately paid carers
... He cannot be required to be dependent upon state provision of care or NHS
medical services." He thought it would be rare for a claimant to be obliged
to accept state-provided care. The judge commented on the detailed provisional
assessment of the value of the claim presented by junior counsel on behalf of
the Claimant, which was based on the evidence of the Defendant's care expert.
9. The Defendant canvassed the possibility that the Claimant's status as a patient
might be challenged, but the judge considered that such a challenge was unlikely
to succeed.
2 March 2004
BILL BRAITHWAITE Q.C. (who did not appear on this application) and PHILIP
GREGORY are instructed by VINCENT OAKLEY, neurolawyer and solicitor.