Sedge v Prime [25.04.12]
Interim payment awarded to enable Claimant to move from residential care home for a trial care regime in his own accommodation; doing so would not prejudice the Defendant by rendering the “level playing field” uneven.
This case confirms the approach in Eeles v Cobham Hire Services Ltd  remains the court’s position when considering the appropriate level for interim payments of damages.
The Court confirmed that such applications will be decided on an individual basis, emphasising that “Claimant’s solicitors should not regard [the] decision as encouraging trial runs of community care at insurers’ expense”. However, if the claimant can show that there is a “real and immediate” need for a change in a care regime which will reasonably benefit his welfare; defendants are unlikely to take much reassurance from this decision in their ability to challenge such an application.
The Court will at least quantify the claim conservatively to ensure the interim payment is "a reasonable proportion of the likely amount of the final judgment". Claimants cannot, therefore, rely on their application succeeding in full. In this case the Court made the assessment of costs of trial of residential care without any care evidence from the Defendant. It may, therefore, be prudent for defendants to consider early care assessment in order to facilitate a challenge, if necessary, to the claimant’s care evidence.
This case also highlights the potential conflict with the Mental Capacity Act 2005 (MCA) where the Deputy must act in the claimant’s “best interests” when making a decision on his behalf – namely, where the claimant should live. Such decisions are based on different obligations to those of the solicitor acting on behalf on the claimant with regard to establishing his “reasonable needs”. It is something to be alive to, especially where the deputy is a partner in the same law firm as the solicitor acting on the claimant’s behalf (as is often the case).
The 26 year old Claimant sustained serious brain injury in a road traffic accident in June 2006. He is confined to a wheelchair and requires 24 hour care. His cognitive and intellectual functions remain unclear and his life expectancy is not agreed. He has been cared for at a residential home since the time of his injuries.
In early 2011, liability was admitted with a finding of 25 per cent contributory negligence and an interim payment was made to fund a case manger and support worker. A financial deputy was also appointed by the Court of Protection pursuant to the Mental Capacity Act 2005 (MCA).
In January 2012, the Claimant sought a further £300,000 to enable him to move, on a trial basis, into an adapted rented bungalow with a 24 hour care regime. The medical experts were divided over whether or not the Claimant would benefit from a move to his own accommodation. However, those responsible for the Claimant’s welfare under the MCA unanimously concluded that the move would be in his “best interests” within the meaning of s.1(5).
The issues were whether:
- A trial of care in the community would unfairly prejudice the Defendant in the sense that it might, by the time of the trial, have become so firmly established that the judge would find it impossible to change it.
- £300,000 represented a reasonable proportion of the likely amount of the final judgment (pursuant to CPR 25).
- If £300,000 was more than a reasonable proportion of the likely final award, it should nevertheless still be paid on the basis that it was needed to meet the Claimant’s reasonable needs “there and then” (i.e. the ‘Eeles part 2’ argument).
Sitting in the High Court, John Leighton Williams QC held that the issue of deciding whether community based care met the Claimant’s reasonable needs in the long-term was ultimately for the trial judge to decide (rather than for him) - applying the test of “reasonable needs” and not what is in the Claimant’s “best interests” within the meaning of s.1(5) MCA.
With reference to the three issues, the Judge held:
- A trial of community care was appropriate and reasonable - it would not be plainly wrong to make an award of a reasonable proportion of the final award for the trial. Should the trial community care fail, residential care could be resumed. To allow the trial of community care would not alter the level playing field to such an extent that would unfairly prejudice the Defendant, whereas to not allow it may well unfairly prejudice the Claimant.
- The final award was likely to be in the region of £508,214 and an interim payment of £300,000 would (together with the £175,000 already paid) far exceed a reasonable proportion of that sum – and present the risk that such a sum would encourage the trial of community care to run longer than is necessary.
- While it was possible for the court to consider additional elements of future loss, it could only do so (following Eeles) where it was satisfied there was a real and immediate need, the amount sought was reasonable and the expenditure was reasonably necessary. An interim payment of £150,000 should be more than adequate to confirm by December 2012 the suitability of community care. If, at that stage, it was clear community care was the way forward, then an application for a further interim payment could be considered.