Brewis v Heatherwood & Wrexham Park Hospitals NHS Trust [2008] EWHC 2526 (QB)

[2008] EWHC 2526 (QB)

Case No 1HQ/08/0863

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue St Dunstan's House 133- 137 Fetter Lane London EC4A 1HD

Date Monday, 20th October 2008

Before

MR JUSTICE COULSON

Between

BEN BREWISClaimant

HEATHERWOOD &WREXHAM PARK HOSPITALS NHS TRUSTDefendants

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Mr Julian Matthews (instructed by Messrs Harris Carter) for Claimant.

Mr Angus Moon QC (instructed by Messrs Weightmans)

for Defendant.

Judgment

INTRODUCTION

[1]This is an application by the Claimant for an interim payment of £950,000 and an order that he be permitted to rely on further expert evidence from an expert in assistive technology for profoundly disabled children. At the hearing on 16th October 2008, I explained my reasons for declining the latter application and suggested an alternative course, which I outline in the last part of this judgment. Thus the majority of this judgment concentrates on the issues raised by the application for an interim payment.

[2]I set out the relevant background at section B below. At section C, I identify the principles relevant to the application for the interim payment, before going on at section D to explain how I have arrived at the figure that I shall order to be paid pursuant to CPR Part 25. At section E, I deal briefly with the application for an additional expert. I ought to say at the outset that I am extremely grateful to both Counsel for their helpful written and oral submissions.

THE BACKGROUND

[3]The Claimant was born on 9th February 2001. Unfortunately, as a result of errors made during his mother’s labour, the Claimant suffered from asphyxia, which caused serious brain injury. He went on to develop cerebral palsy.

[4]These proceedings were commenced on 21st February 2005. Neither liability nor causation were in issue and, on 23rd September 2005, judgment was entered for the Claimant for damages to be assessed.

[5]It is unnecessary to set out in any great detail the contents of the experts’ reports. In essence, the Claimant suffers from four limb cerebral palsy and is and always will remain dependent on 24 hour care. The report of Dr Richard Miles, the consultant paediatrician, dated October 2007, describes the Claimant as:

“A very seriously disabled boy with limited mobility. He is totally dependent and will always be so.”

The report also records the Claimant’s enjoyment of school and the progress that he is making there. At paragraph 26, the report specifically identifies the importance for the Claimant of hydrotherapy and his regular immersion in warm water. At paragraph 28, the report identifies the importance of all attempts to improve the Claimant’s ability to communicate.

[6]When the Claimant was born, his father, Marc, was a catering manager at Eton College and lived in tied accommodation provided by the school. However, that accommodation rapidly became unsuitable, largely because no adaptations could be made to it to facilitate the Claimant’s care. The family moved to a rented Housing Association property, which was also unsatisfactory in a number of ways. Following the admission of liability and causation to which I have previously referred, the Claimant and his parents moved to larger rented accommodation. However, as the Claimant has grown, that too has become unsuitable.

[7]Of the Claimant’s parents, it was his mother Linda who was the higher earner, and so the sensible decision was taken that it would be Marc who would give up his job and become responsible for the Claimant’s day to day care. The need for the new accommodation has been emphasised in recent months because Marc and Linda have now separated and Linda has left the family home, although she remains very involved in the Claimant’s care and case management.

[8]The need to purchase a single storey property and to adapt it for the Claimant’s particular needs lie at the heart of this application for an interim payment. Three particular elements of the evidence before me are relevant to this aspect of the case.(a) In his witness statement of 22nd August 2008, the Claimant’s father Marc says this: “… the present pressing need is for a suitable property in which Ben’s needs can be met and his considerable potential realised … As the current property is rented, we are not able to make any alterations to it. However, Ben has continued to grow, his physical needs to become more complex. He now requires specialist equipment at home, as set out in the various expert reports. In addition, we have now reached the stage, particularly since Linda and I have separated, where professional care support will be required. Mr Luck’s report sets out clearly what Ben’s requirements are. Those requirements cannot be met in the present rental property. Now that Ben is settled at school and his needs over the next few years can be assessed, it is obviously important that he can be provided with the accommodation that he requires as soon as possible. I also understand that there may be considerable difficulties in relation to engaging care support staff if the necessary equipment for hoisting and moving Ben cannot be installed, which it clearly cannot in a rented property.”

(b) In the report dealing with the Claimant’s present and future care needs, Ms Maggie Sergeant identifies a number of the difficulties with the present rented property and confirms the urgent need for more suitable accommodation.

(c) The architectural expert, Mr Luck, in his report of May 2008, has arrived at a figure for the purchase of a suitable property of £607,980. He has also put together a specification of the works that will be necessary to alter such property to make it appropriate for someone of the Claimant’s needs and disabilities. Those additional works, including the provision of a spa pool at £25,000, have been costed in the round figure of £325,000. That will include one year’s further rent in the existing accommodation whilst the new accommodation is adapted.

[9]An updated Schedule of Loss was recently served in accordance with the order of Master Ungley. That arrives at a total damages claim of just over £5.6m. That overall claim can be broken down in general terms in this way:(a) There is a claim for general damages in the sum of £200,000.

(b) The claim for past losses is in the figure of about £280,000. The principal items of past losses are care at £92,000-odd, additional transport costs, comprising principally the purchase of an adapted vehicle, at £44,600-odd, and additional housing and accommodation costs at £66,400-odd.

(c) There is a claim for accommodation, namely relocation, adaption and other additional costs, in the sum of £670,000-odd.

(d) There is a claim for future loss of earnings in the sum of just under £310,000.

(e) All of the remaining claims are connected with care and case management. It is accepted that at trial the majority of these claims are likely to be the subject of periodical payment orders. That is a topic to which I return below.

[10]Thus far in these proceedings, interim payments totalling £168,000 have been made. Accordingly, this application is the first made on behalf of the Claimant for a substantial proportion of the sums claimed at trial. Furthermore, given that the trial has now been given a provisional slot in January to March 2010, it seems to me likely that this may be the only application for an interim payment between now and the trial. I turn, therefore, to the principles governing the ascertainment of a reasonable sum by way of an interim payment in cases such as this. THE RELEVANT PRINCIPLES

C1. CPR Part 25

[11]CPR Part 25.1(1) provides:

“The court may grant the following interim remedies – … (k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay …” … (k) an order (referred to as an order for interim payment) under rule 25.6 for payment by a defendant on account of any damages, debt or other sum (except costs) which the court may hold the defendant liable to pay …”

[12]CPR 25.7 deals with the conditions to be satisfied and matters to be taken into account by the Court when making an interim payment. CPR 25.7(4) provides:

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

C2. The General Approach

[13]In Stringman (A Minor) v McArdle

[1994] 1 WLR 1653

, the Court of Appeal held that, in order to obtain an interim payment, the claimant was not required to demonstrate any particular need beyond the general need to be paid damages as soon as reasonably possible. They ruled that the court should not, when considering whether to order such a payment, investigate how the money was going to be used. On the facts of that case, they were confident that the claimant was going to recover damages at trial which would substantially exceed the aggregate of the sums sought by way of an interim payment and those sums already paid. In addition, the Court of Appeal emphasised that any expenditure in that case was subject to the control of the Court of Protection.

[14]In Campbell v Mylchreest [1999] PIQR 817, the judge at first instance had ordered an interim payment of £100,000 in a case where the claimant had said that the money was to be applied to the setting up and running of a home care régime on a permanent, long term basis. The defendant argued that, if an interim payment was made and applied for that purpose, it could have the effect of enabling the claimant to live permanently at his parents’ home and thus affect the status quo when it came to the judge’s assessment of the right level of damages at the trial. It was submitted that “the playing field would have been rendered unlevel prior to the trial”, to the actual or reasonably perceived disadvantage of the defendant. The Court of Appeal dismissed that contention. The judgment of Balcombe LJ explains in some detail how and why the interim payment in that case left the playing field level. The Court of Appeal reiterated that it was not concerned with what the claimant proposed to do with any sums awarded by way of interim payment.

[15]Both of these cases were concerned with interim payments in personal injury claims where the driving force behind the application was to purchase and/or adapt accommodation. A more recent case on the same topic was Spillman v The Bradfield Riding Centre

[2007] EWHC 89 (QB)

, in which Langley J referred both to Stringman and Campbell and where he ordered an interim payment calculated by taking 75% of 70% of the total sum claimed. There was a major issue in that case as to whether or not the claim for larger accommodation would succeed in principle at trial. Langley J noted that his order would not lead to a payment of funds sufficient to allow the claimant to buy a new house.

C3. Periodical Payments

[16]Section 2(1) of the Damages Act 1996, brought in by way of amendment by the Courts Act 2003, came into effect on 1st April 2005. It marked a move away from the traditional lump sum damages awards in personal injury cases towards the making of periodical payment orders. The correct approach at trial to the making of such orders was the subject of detailed guidance from the Court of Appeal in Tameside & Glossop Acute Services NHS Trust v Thompstone

[2008] EWCA (Civ) 5

. The relevant part of the judgment of Waller LJ is at paragraphs 101 to 108. The balancing act required of

the judge at trial is the subject of paragraph 107:

“There is now no dispute that, in deciding whether to make an order under section 2(1), the judge’s overall aim must be to make whatever order best meets the claimant’s needs. Part 41.7 might have been more clearly expressed but that is what it amounts to. The parties also agree that the claimant’s ‘needs’ in Part 41.7 are not limited to the needs that he demonstrated for the purpose of proving the various heads of damage; they include those things that he needs in order to enable him (or those looking after him) to organise his life in a practical way. For example, if the claimant is not yet living in suitable accommodation, one of his immediate needs will be to buy somewhere to live. The damages assessed under the head of accommodation will not cover the whole of the costs of purchase and adaptation. So he will need enough capital to enable him to buy, adapt and equip a home. He may have other immediate needs, such as the purchase of a vehicle, for which damages have been agreed or awarded. He will certainly need a regular income stream from which to pay his continuing expenses, particularly for care. It may well be in his best interests that, rather than relying on the income from the investment of a lump sum, that income stream should be provided by a PPO, so that, when appropriately indexed, it will keep pace with the rise in the cost of provision. Many claimants are advised that, due to the uncertainties inherent in a long life in a disabled condition, they should seek a substantial capital sum for contingencies in addition to that required for their immediate and foreseeable needs; this will provide a degree of flexibility in the future. The claimant may also wish to purchase some facility for which damages have not been awarded at all or for which partial damages have been agreed on a compromise basis. Such a facility may not be a ‘need’ in the sense of being an absolute necessity (if it were, it would have been covered by the damages) but it may nonetheless be taken into account by the judge when assessing what order best meets the claimant’s needs. In short, the claimant’s needs are not limited to the provision of those things which are foreseeable necessities but must be considered in a wider and more general sense. The decision as to what form the order should take will be a balancing exercise of the various factors likely to affect the claimant’s future life.”

C4. The Relationship Between an Interim Payment and Subsequent Periodical Payment Orders

[17]It is easy to see how, in theory at any rate, the making of an interim payment under CPR Part 25 might affect the judge’s ability at trial to get the balance right between the lump sum element of any damages award and the periodical payment orders that may be necessary. How should the Court approach the ascertainment of an appropriate interim payment in such circumstances? Two authorities were cited to me on this specific point. Although Counsel indicated that these cases were not easy to reconcile, I have concluded that on a proper analysis they are not only consistent but provide a helpful guide to the proper approach in such circumstances.

[18]In Mealing v Chelsea & Westminster NHS Trust

[2007] EWHC 3254 (QB)

; [2008] LS Law Med 236, Swift J ordered an interim payment of £250,000. The claimant had been seeking £1 million to fund her care package and to pay for new accommodation. Particular features of that case were:(a) Interim payments of £773,000 had already been made;

(b) There were concerns about the claimant’s claims and whether or not they were inflated. Her claims included a claim for a property outside Nice in France and for the entire family’s living expenses.

[19]On the interplay between an interim payment under CPR Part 25 and the likelihood at trial of PPOs, Swift J said this:

“52. The trial judge will have to consider whether part of the award should be by way of periodical payments and, if so, how much. It is very important, in the particular circumstances of this case, that no decision that I make at this stage should have the effect of unduly fettering the judge's freedom to allocate as large a proportion of the award to periodical payments as he or she considers appropriate. I recognise that, as Mr Rees has pointed out, it would be unusual for a periodical payments order to cover future recurring costs, other than those for care, case management and, possibly, loss of earnings. However, it is not unknown for other annual recurring costs to be included within an order for periodical payments. In any event, it is highly likely that the trial judge would want to make a lump sum order sufficient to cover capital expenditure, including the provision of accommodation, and to cover contingencies for the future. That lump sum will be derived, at least in part, from the capitalisation of future annual recurring costs not included within the periodical payments order. An interim payments order that resulted in a significant proportion of those costs being spent in advance of the hearing would have the indirect effect of reducing the amount of the award that is available to be paid by way of periodical payments. This is particularly significant here where no property has yet been purchased and where sufficient monies for the provision of accommodation would have to be included within the lump sum award. 53. There are a number of features of this case that may persuade a judge that a significant proportion of the award should be by way of periodical payments. One such feature may, as the defendant suggests, be the additional safeguard (over and above that already provided by the deputy) that a periodical payments order would provide against too rapid dissipation of the claimant’s funds.”

[20]Having arrived at the figure of £250,000, which was of course much less than the sum sought, Swift J also said this:

“57. I am satisfied that such a sum represents no more than a reasonable proportion of the likely award of damages. I am satisfied also that it will not have the effect of fettering the discretion of the trial judge to make whatever order in respect of the award of damages or periodical payments he or she considers appropriate. I take into account also that the sum should be sufficient - indeed more than sufficient - to meet the claimant's reasonable needs, until the likely date of the trial.”

[21]In Braithwaite v Homerton University Hospitals NHS Foundation Trust

[2008] EWHC 353 (QB)

, Stanley Burnton J (as he then was) awarded the claimant the entirety of the interim payment sought, which was £850,000. Again, the basis for the application was for the provision of new accommodation suitable to the claimant’s needs. The judge agreed that the claimant’s existing accommodation was grossly unsuitable. His reasoning for making the order sought is set out in paragraph 13 of his judgment in these terms:

“The need of the claimant for professional care and for suitable accommodation is evident on the evidence before me. It is not suggested, as I understand it, that the accommodation that is presently occupied by the claimant, her mother and her sister, is in any way suitable. The object of the jurisdiction to award an interim payment is in part so that a claimant who is in such need may have those needs satisfied out of monies she is likely to receive in due course. The need is enhanced in the present case because the ability of the claimant to access professional care is itself limited by her present accommodation. It is only if she can obtain suitable accommodation that there will be any possibility of her accessing professional care.”

[22]Stanley Burnton J also dealt with the interplay between CPR 25.7(4) and the likelihood of periodical payment orders and said that he found it difficult to see how the working of the rule could be applied to an order for periodical payments as opposed to the lump sum. However in his judgment at paragraph 8, he said:

“The court, for the purposes of Part 25, rule 7, must form a view as to the likely amount of the final judgment. Assuming that it is a capital amount, it is not necessarily writ in stone, by which I mean that when one comes to Part 41, the court may assume that the only capital payment will be in respect of past losses but may, in appropriate circumstances, consider that there will be a capital payment which will represent some part of future losses which could but need not be compensated by periodical payments. There is, I understand, no issue as between the parties as to the jurisdiction of the court at trial to divide its final award as between capital and periodical payments as it sees fit. The periodical payments may be reduced or their inception may be postponed having regard to the capital amount which the court orders which, in part at least, is compensation for future loss.”

[23]The judge went on to say, in paragraph 11, that, having identified the likely sums to be awarded for general damages, past losses and interest, the real question on the CPR Part 25 application was whether any assumption or prediction could be made as to the capitalisation of the remainder of the claims. He acknowledged, in paragraph 12, that there was a high degree of prediction involved and accepted the submission that “the court should not make a decision which is liable to close the door on decisions which may be made by the trial judge”. However, his conclusion on that point was at paragraph 15:

“Again, in my judgment, even on the evidence presently available I can confidently predict that at trial the judge will make an order for a capital payment significantly in excess of £850,000. I say that because unless such an award is made the claimant’s needs simply cannot adequately be satisfied, as I have already indicated the accommodation is unsuitable and she cannot access professional care. If that means that there will have to be some discount to or postponement of periodical payments, in my judgment, the judge is bound so to order.”

[24]I consider that the following principles can be clearly discerned from these two helpful cases:(a) The correct approach is to identify what is likely to be awarded for general damages, past losses and interest and then predict the likely capitalisation of the remainder of the claims.

(b) In carrying out this task, the Court must endeavour to ensure that the amount of the interim payment does not fetter the discretion of the trial judge to make whatever order in respect of the lump sum award of damages and/or periodical payments he or she considers appropriate.

(c) On the other hand, the Court must also have regard to the principles taken from the authorities set out in section C2 above, and should pay particular regard to the Claimant’s specific needs and the requirement that damages be paid as soon as reasonably practicable. When considering interim payment claims for new accommodation, paragraph 107 of the judgment of Waller LJ in Thompstone is also relevant, particularly his reference to the need to provide a claimant with enough capital to enable the claimant to buy, adapt and equip a home. THE ASCERTAINMENT OF THE APPROPRIATE INTERIM PAYMENT

D1. Methodology

[25]On behalf of the Defendant, Mr Moon QC does not suggest that no interim payment should be made. His principal point is that the court should not award a sum which is so large because that it would or could affect the amount and scope of the periodical payments that the judge may otherwise order at trial.

[26]I propose to ascertain the appropriate amount of the interim payment in this way. First, I identify the amount by way of a lump sum which I consider the judge is likely to award at trial in respect of past losses, general damages, accommodation and interest; I then compare that figure with one calculated by reference to the particular matters set out in the evidence in support of the application for an interim payment under CPR Part 25; and I then gauge the likely effect such a figure might have on any periodical payment orders that might be made in the future.

D2. Likely Amount of Lump Sum at Trial

[27]The Claimant seeks £495,627.30 by way of general damages, past losses and interest. No particular points are made on these figures by the Defendant. I have concluded that it is unlikely that there will be anything other than a modest discount (say 10%) from this figure at trial. I reach this view principally because, in my judgment, the evidence demonstrates overwhelmingly that the Claimant’s parents have been extremely prudent in their expenditure since the Claimant was born. On that ground alone, this is a very different case from Mealing. I would, therefore, utilise a figure of, say, £450,000 under this head of claim for the purposes of estimating the likely lump sum awarded at trial.

[28]The pleaded claim for relocation, adaptation works and other additional costs is £670,596.74. This is less than the actual cost of purchase and adaption because, following the principle identified in Roberts v Johnstone

[1988] 3 WLR 1247

, the damages to be awarded under this head of loss should not be the net capital cost of the purchase, but the additional annual cost over the claimant’s lifetime of providing that accommodation. Again, that differential is expressly identified in paragraph 107 of the judgment of the Waller LJ in Thompstone.

[29]Again, it seems to me likely that most if not all of this claim will be recovered at trial. It is not in dispute that the Claimant requires new accommodation (in this case probably a bungalow) which will then have to be adapted so as to make it suitable for his particular needs. Again, no specific points in relation to that important part of the claim are taken by the Defendant. Therefore, I would utilise a round figure of £600,000 under that head of claim for the purposes of estimating the likely lump sum awarded at trial.

[30]Accordingly, excluding all other heads of claim, I estimate a figure for the likely lump sum awarded at trial at around £1,050,000. I acknowledge that this figure might be said to be at the higher end of the appropriate bracket because I have deducted only about 10% from the sums claimed. On the other hand, I consider that this modest discount is justified for the reasons that I have given. Moreover, I have taken no account of the claim for future loss of earnings, which may well be the subject of a lump sum award at trial, and I have also assumed that every single other head of claim will be dealt with by way of a periodical payment order, a contingency which I consider to be remote. I am, therefore, satisfied that the figure of £1,050,000 is a reasonable estimate of the likely lump sum to be awarded at the trial.

[31]From that figure must be deducted the interim payments already made. Those total £168,000. That leaves a total of £882,000 as the likely estimate for the net lump sum awarded at trial. How does that compare with the specific sums sought, and the amount which I consider to be recoverable, by way of interim payment under CPR 25?

D3. The Sums Sought/Recoverable By Way of Interim Payment

[32]This sums sought by way of interim payment are for the cost of providing a suitable property for the Claimant and the costs of its adaption to meet his particular needs. The average property price has been calculated by the expert, Mr Luck, in the sum of £607,980. Mr Luck’s report is dated May of this year. It would, I think, be wrong for me not to take note of the decline in property prices since that date. Mr Moon QC suggested a reduction of 10% to reflect that decline. Given that the Claimant can only purchase a particular kind of property, I consider that 10% is too high, and I would reduce the figures set out by Mr Luck by 7%. That gives a figure for the new accommodation of £565,421.40.

[33]As to the costs of the alteration and adaption work, they have not been the subject of any detailed submissions by Mr Moon QC on behalf of the Defendant and, in the circumstances, I would be reluctant to make any significant reduction to the figures claimed. They are, after all, supported by expert evidence. However, I do again consider that, since the figures were identified in May, there has been a reduction in the cost of construction works, although that decrease is not as great as in the price of property. I would make a reduction of 5% from the figure claimed, leaving a figure for the costs of adaption of £308,750.

[34]On that basis, I arrive at an amount by way of interim payment, based on the evidence before me of the Claimant’s immediate needs, of £874,171.40. I note that that is within the likely net lump sum figure of £882,000 which I have identified in paragraphs 27 to 31 above. Therefore, unless there is some reason why I should not do so, I would conclude that the figure of £874,171.40 is the appropriate figure to award under CPR Part 25.

D4. The Relationship With Future Periodical Payment Orders

[35]There are three reasons why I have concluded that, not only is an interim payment of £874,171.40 appropriate in the present case, but that it should not be reduced because of the future periodical payment orders that may be made in this case.

[36]First, there is nothing in the evidence which indicates that an interim payment in this amount will, in reality, have any effect on the likely periodical payment orders made by the trial judge. I consider that it is for a Defendant in these circumstances to be able to demonstrate at least the risk that a particular level of interim payment will adversely fetter the judge’s discretion at trial. That has not happened here. On the contrary, I consider that my analysis at paragraphs 27-31 above demonstrates that an interim payment of this amount would not affect the level of future PPO’s.

[37]Secondly, I consider that this case has much in common with the situation in Braithwaite and absolutely nothing in common with the situation in Mealing. Here, as in Braithwaite, I consider that the Claimant is entitled to suitable accommodation sooner rather than later, and ought to recover a capital sum to reflect that need at this stage. Indeed, I am not conscious of any arguments the other way. The interim payment which I have identified will meet the urgent and undisputed needs of the Claimant.

[38]Thirdly, in Braithwaite, as I have already identified, Stanley Burnton J said in terms that an interim payment that reflected the Claimant’s needs might mean that, at trial, there would have to be some discount to or postponement of periodical payments ordered by the judge. He did not regard this as a reason, on the facts of that case, to reduce the amount of the interim payment. Again, I have concluded, for all the reasons set out above, that precisely the same considerations apply here.

D5. Inducement to Delay

[39]I should deal with one final and free-standing point taken by Mr Moon QC. Relying on the judgment in Mealing, he cautioned me against making any interim payment that might act as an incentive to the Claimant and his family to delay the trial. It seems to me that this is, at least in principle, a fair point for a defendant in these circumstances to raise; a judge must be careful to ensure, if he has in mind making a significant interim payment, that such an amount will not have a delaying effect on the litigation.

[40]However, there are two reasons why I am satisfied that that would not happen here. First, the trial is already the subject of a detailed case management timetable provided by Master Ungley. It is that timetable that leads to the provisional trial slot of January to March 2010. In addition, the parties are due back before Master Ungley on a review case management conference in March 2009. It, therefore, seems to me that delays are unlikely in such circumstances, no matter what the size of the interim payment.

[41]Secondly, as I have already noted, the Claimant and his family have been extremely prudent in their expenditure. That is precisely the opposite of the position in Mealing, where the potential dissipation of assets caused the judge concern that a large interim payment might cause or act as an incentive to delay. In the present case, there is nothing that leads me to conclude that the interim payment that I have in mind would give rise to any delay, or affect in any way the proper timing and conduct of the future trial.

[42]I do accept that there have been delays in the past which, at least in part, can be laid at the door of the Claimant because of his failure to comply with previous timetables and directions provided by the Court. However, for the reasons that I have given, I am confident that the case is now back on track and that its future conduct will be unaffected by the amount of the payment in.

[43]For all these reasons, therefore, I conclude that an interim payment should be made by the Defendant to the Claimant in the sum of £874,171.40, pursuant to CPR Part 25.

FURTHER EXPERT EVIDENCE

[44]I can deal with this application much more shortly. As I indicated to Mr Matthews in the course of argument on 16th October, it is plainly important for the Claimant’s communication needs to be the subject of particular consideration and advice. It is not entirely clear whether this topic is outside the experience and expertise of the present experts. If it is not, then of course they can deal with the matter and should do so as a matter of urgency. If, on the other hand, it is beyond their experience and expertise, then it seems to me that this aspect of the Claimant’s therapeutic needs should be the subject of a separate consultation and a separate report.

[45]It may very well be that, if a separate report is produced on these matters, nothing in that report will prove to be controversial, so that there would be no need for any further expert evidence at all. It is only if that report raises something which is in issue between the parties that it would then be necessary for the Court to consider what, if any, further expert evidence may be required for the purposes of the trial. However, as things presently stand, it would not be appropriate for the Court to add to the costs in this case by making an order for a further expert, at least at this stage.

CONCLUSIONS

[46]For the reasons set out above, I order an interim payment under CPR 25 in the sum of £874,171.40. I decline the application for further expert evidence in the litigation. I would ask the parties to draw up an order based on this judgment.