Spillman v Bradfield Riding Centre [2007] EWHC 89 (QB)

[2007] EWHC 89 (QB)Case No HQ00X01670
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/02/2007
Before
THE HONORABLE MR JUSTICE LANGLEY
Between
JADE SPILLMANAppellant/ ClaimantBRADFIELD RIDING CENTRERespondent/ Defendant
Ms E.A. Gumbel QC (instructed by Irwin Mitchell (Newcastle)) for Appellant/ClaimantMs C. Foster (instructed by Middleton Potts) for Respondent/DefendantHearing Hearing date: 22 nd January 2007
Judgment
[1]This is an appeal by the Claimant, with the permission of Butterfield J, from an Order made by Master Leslie on 8 August 2006 when, on the Claimant’s application for an interim payment under CPR 25.7, the Master ordered a payment of £15,000, in addition to a payment of £15,000 ordered on 20 February 2006 when the hearing of the application had been adjourned for further evidence to be adduced. The application sought a further payment of £400,000. At the time the application had been made interim payments had been made voluntarily totalling £50,000. The further £30,000 ordered has also been paid.

The Claim

[2]The Claimant (Jade) was born on 3 June 1991. On 15 September 1995 she was kicked by a horse whilst at the Defendant’s riding school. She suffered a serious head injury. The Defendant has accepted 70% liability for the accident. The court approved this settlement of liability on 9 May 2000. Thereafter, the Defendant made the voluntary interim payments totalling £50,000.[3]The experts are agreed that it is “not possible to determine Jade’s outcome beyond school in terms of employment or independent living at this stage”. The parties agree that a trial is at least two years away.[4]The claim is currently put forward in a sum approaching £1.4 million plus general damages. On a 70% basis the claim would therefore be for close to £1 million plus 70% of general damages. Any damages paid will be held in the Court of Protection. The schedule of expenditure actually incurred for receivership costs, speech and language therapy, care costs, case management costs and other past expenditure is in a sum of about £80,000. That sum covers the period from September 1995 to December 2005 but excludes personal care support provided in much the same period claimed in a total sum of about £48,000.[5]There are undoubtedly serious and stark disputes between the experts on diagnosis, causation and prognosis, and in particular as to the extent and effect of any continuing disability. The future care and accommodation requirements claimed, which form the bulk of the Schedule of Loss and Damage, are dependent on the outcome of this dispute.[6]It was the Defendant’s case before the Master that a proper quantification of the claim (insofar as it can be made at present) would not be in excess of £260,000 which, at 70%, gives a total figure of £182,000. The issues, albeit from the viewpoint of the Defendants, are summarised in the third witness statement of their solicitor, Patrick Hann.[7]As might be expected, each party tried to persuade the court of the strength of their case on the contested issues. As might also be expected, having been referred to the relevant evidence, quite apart from the agreed uncertainty to which I have referred, I feel quite unable to conclude that one party’s case is more likely than the case of the other. In particular, Miss Gumbel QC, for Jade was unable to put forward any justification for favouring the case of the Claimant beyond the generality that this was a serious injury and there must be some consequent future care requirement and expenditure to be met.

The Master’s Judgment

[8]The application before Master Leslie was adjourned on a number of occasions mainly for further evidence to be adduced. From his judgment, it is clear that the, or at least a, major concern of the Master was that the application was presented (as it was) on the basis that an interim payment was necessary or justified to provide special care and larger accommodation for Jade. It was proposed that her parents should acquire a new house which would provide Jade with en suite facilities, a separate study and a meeting room separate from the living room. It was this proposal which underlay the amount sought by the application.[9]The Master (as I am) was not able to conclude on the evidence that the claim on the basis of new accommodation was likely to succeed. Miss Gumbel submits that was a mistaken view of the law: the Master was only required to approve the amount of any payment not how it was to be spent, especially so where expenditure is subject to the control of the Court of Protection: see Stringman v McCardle [1994] 1 WLR 1653. Ms Foster, for the Defendants, submits that if an interim payment was ordered in an amount which resulted in expenditure of the kind referred to, then that head of damage would become self-fulfilling as the Defendants would, at a trial, be faced with a Claimant who had the benefit of the accommodation and care, to which it was the Defendants’ case she was not entitled, leaving the Court with the unenviable task of in effect awarding no damages for real and recoverable needs unless it agreed with the case for the Claimant. That would not be a “level playing field”: see Campbell v Mylchreest (CA 23 January 1998). Various further authorities were cited in support of these submissions. I do not, however, think they need to be referred to. The starting point must be the terms of CPR 25.7.

CPR 25.7

[10]The Court may make an order for an interim payment in any case in which the Defendant has admitted liability and the Court is satisfied that if the claim went to trial the Claimant would obtain judgment for a substantial sum of money, and, in the case of a personal injury claim, the Defendant is insured. Those conditions for the making of an order are not in issue, albeit liability is of course limited to 70% of the value of the claim.[11]CPR 25.7(4) provides that:
“The court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment.”
[12]Thus the Rule requires the Court (granted the other conditions are satisfied) to determine, first, “the likely amount of the final judgment”; second, what is a reasonable proportion of that amount; and, third, to address any other matters it considers material to the exercise of the overall discretion whether or not and if so in what amount to order a payment.

The Master’s Reasoning

[13]Perhaps understandably, in view of the way the application was presented, the Master, having rejected the purpose which underlay it (the purchase of a new house) did not, in his judgment, at least in terms, address any of the three matters to which CPR 25.7(4) directs attention. He referred (paragraph 20 of the judgment) to the claimant failing to satisfy him that she would recover sufficient monies to justify a payment of £400,000 (I agree); he noted that the defendant sought to limit the damages to £260,000 reduced by 30% to £182,000 (adding that might be “optimistic” on their part); but then added:
“That only goes in my judgment to reinforce my conclusions that this is not a proper case for me to make the order for the interim payment which is sought.”
[14]It was then pointed out by Ms Gumbel that the application was for “such sum as the Court shall specify” and the Master then ordered the payment of a further £15,000 but on no expressed or readily discernible basis.[15]In those circumstances, and regardless of whether the Master was right or wrong to have as much regard as he did to the expressed purpose for the payment sought, in my judgment it is right and counsel accepted that this court should exercise the powers under CPR 25.7(4) following the three stages which I think the Rule dictates.

Likely Amount of a final judgment

[16]The figure of £260,000 was put forward by Ms Gumbel as a fair calculation of the claim insofar as the Defendants appeared to acknowledge it. That calculation was repeated in her skeleton argument for the appeal. As I have stated, before the Master, Ms Foster contended that the claim would not be “in excess of that figure”. The same contention was advanced on the appeal. However, and for the first time, in her oral submissions, Ms Foster put forward lower figures to reflect what she submitted could safely be found to be a “likely” figure rather than a “not in excess of” figure. She put forward a lower figure for general damages (£60,000 not £100,000), excluded future loss of earnings (£50,000) and reduced the figures for past care and therapy. The total arrived at for the claim on this basis was £120,000.[17]The question is what is a likely amount of a final judgment. In a case such as this, where the gap between the parties is so wide, the question must inevitably involve a less than scientific approach. But this was a serious injury. It has undoubtedly meant that Jade has required extra care. There remain some consequential disabilities albeit their severity is in serious issue. I think the figure Ms Foster was prepared not to dispute before the Master is a figure which this Court can safely conclude is an amount which Jade is likely to recover in a final judgment.

Reasonable Proportion

[18]There is no rule (of law or thumb) as to what is a reasonable proportion. Ms Foster referred to 75%, the figure which she submitted found some favour in Dolman v Rowe [2005] EWCA Civ 715 at paragraphs 14 and 15. Ms Gumbel submitted a higher percentage was justified where the starting point was substantially based on losses already incurred and a long time had elapsed and was yet to elapse before a final judgment could be expected. Ms Foster countered by submitting that further applications for interim payment could be made or agreed if they were justified in the future.[19]I do not think it attractive for further applications to be encouraged. The purpose of ordering only “a reasonable proportion” is to avoid prejudice to an overpaying Defendant. The time already elapsed and yet to elapse is, I think, a significant factor. Future uncertainties are to a considerable extent excluded from the figure of £260,000 I have adopted on a 100% basis. The fact that payments out will be controlled by the Court of Protection also provides a measure of protection to the Defendants.[20]In my judgment, a reasonable proportion of the figure of 70% of £260,000 (£180,000) is 75% which, I think, should be quite sufficient to provide the Defendants with any protection they need against Jade being over-compensated. The interim payment should therefore be based on a figure of £136,500 (75% of £182,000). From this figure there falls to be deducted the payments already made (£80,000) leaving a net figure of £56,500.

Discretion

[21]Issues arising relating to the correctness or otherwise of consideration of the purpose for which the payment was sought and level playing fields do not on my analysis affect the outcome. Jade’s family will not have an order for the payment of funds sufficient to buy a new house.[22]I can see no other reasons for not exercising my discretion to order a payment of the amount to which my analysis has led me. Indeed, none have been suggested.

Conclusion

[23]For the reasons stated, I shall allow this appeal and order that a further interim payment be made in the sum of £56,500. I will hear the parties on the form of order and any ancillary matters (if they cannot be agreed) when this judgment is handed down.

Cited in 1 later judgment