This is an application for an interim payment made on behalf of the claimant who suffered a catastrophic spinal cord injury and very severe pressure sores in the aftermath of what I will term a “freak accident” in 2019 when he fell from a non-motorised scooter… He is now a tetraplegic, wheelchair dependent and requires 24-hour professional care. [1]
The claim is brought in negligence against three defendants, the first being the ambulance service called to the scene of the accident, the second defendant being the receiving general hospital where the claimant was admitted through the accident and emergency department and the third being the specialist hospital that reviewed the claimant’s CT and MRI images and provided advice on treatment to the second defendant. Apart from a few limited breaches of duty being admitted by the first defendant the claim is fully disputed. [2]
The claim was advanced at this juncture because numerous voluntary requests for an interim payment had been unanswered, and the claimant is in dire need of monies… [4]
The preliminary Schedule of Loss prepared by the claimant’s legal team totals in excess of £7 million. [5]
CPR 25.6-9 sets out the procedural requirements to be met concerning interim payments which are an exception to the general principle that a defendant has a right not to be held liable to pay damages until liability has been established by a final judgment. The original purpose of such payments was to mitigate hardship in injury cases caused by long delays prior to the final judgment being obtained, which is precisely the scenario in this case. Where liability has not been admitted, and no judgment has been entered, the court must be satisfied that if the claim went to trial the claimant would obtain judgment for a substantial amount of money from a defendant from whom he is seeking an order ( at 25.7 (c) ) or from at least one defendant, where the court cannot decide which of several defendants against whom the sum should be ordered (at 25.7 (e)). All of the defendants in this case are public bodies, so there is no need to look further at their ability to pay any amount ordered to satisfy other aspects of the procedural tests. [6]
…The guidance confirms that on the hearing of an application there should be no mini-trial as the procedure is unsuited to cases where factual issues are complicated or difficult points of law arise. Paragraph 15-101 clearly sets out that if a defendant does not put forward any evidence regarding contributory negligence or causation issues a judge is entitled to conclude that an interim payment should be awarded on the basis of the evidence that has been presented. [7]
The court has a very wide discretion and one of the cases in the authorities bundle, Test Claimants in F11Group Litigation v Revenue & Customs Commissioners [2012] EWCA Civ 57), is most helpful. Aikens LJ held at [36], “… It seems to me that the first thing the judge… has to do is put himself in the hypothetical position of being the trial judge and then pose the question: would I be satisfied (to the civil standard) on the material before me that this claimant would obtain judgment for a substantial amount of money from this defendant?”. Aikens LJ was keen to point out in that judgment that it is important not to confuse the 2 concepts of burden and standard of proof. The claimant has to satisfy the burden of proof and must also satisfy the standard on the balance of probabilities but to a high degree. He continued at [38], “The only difference between the exercise on the application for an interim payment and the actual trial is that the judge considering the application is looking at what would happen if there were to be a trial on the material he has before him, whereas a trial judge will have heard all the evidence that has been led at the trial, then will have decided what facts have been proved and so whether the claimant has, in fact, succeeded”.
an interim payment is ordered in the sum of £109,006.96 [73]
medicalnegligencenow.com 