Claim defended by Kennedys confirms the court’s approach to providing accommodation for severely disabled Claimant based on the principle in Roberts v Johnstone; Claimant alleged rented accommodation not suitable.

Implications

This case confirms the approach in Eeles v Cobham Hire Services Ltd [2009] remains the court’s position when considering the appropriate level for interim payments of damages. The practice of awarding accommodation costs (including future running costs) as a lump sum is sufficiently well established that it will usually be appropriate to include accommodation costs in the expected capital award.

The Claimant sought a declaration that the interest calculation in accordance with Roberts v Johnstone should not apply, meaning the award of damages should include the capital cost of buying and adapting suitable accommodation. The Claimant offered to give a charge secured on the property.

It is perhaps surprising that the Court was willing to award a substantial interim payment where life expectancy was limited, the counter schedule was not available and the case was only eight months from trial.

Further, the case highlights the importance of assembling and discussing evidence with regard to accommodation options, including rental options, at an early stage as possible. In the absence of a cited case about the suitability of rental options, the Court was reluctant to entertain discussion. However, subsequent to the hearing, the Judge added a rider to his decision confirming that rented accommodation can be suitable, as in Ryan St George v The Home Office [2008], where it was noted that Mr Justice Mackay advised that such should have a more general application in other suitable cases.

Background

The Claimant, born in October 2006, has severe disabilities and requires constant supervision and 24 hour care. He has, on the Claimant’s expert evidence, a potential life expectancy up to the age of 21. Liability has been admitted and an interim payment of £100,000 has already been made.

The Claimant issued an application on 28 March 2012 pursuant to CPR Part 25 for a further interim payment in the sum of £740,000 to provide suitable accommodation. He argued that his current accommodation of a rented bungalow was deficient, including with regard to wheelchair access and floor area. The sum sought was based on the total claim for accommodation in the Schedule of loss, which included a capital sum of £360,000 to purchase a bungalow and a similar sum for extension/adaptations.

The Claimant argued that a calculation based on Roberts v Johnstone would produce a shortfall for accommodation of £241,000 and should not be applied as a matter of principle.

The Defendant’s counter schedule and expert evidence were due to be served after the hearing of the application. Experts are due to meet in July 2012.

Decision

Mr Justice Tugendhat held that, in the absence of any evidence, he saw no likelihood of the final judgment including an assessment of damages based on continuing to rent accommodation for the Claimant. The trial judge is likely to prioritise the Claimant’s need for suitable accommodation, despite his life expectancy and limited insight.

Tugendhat J said he was confident that the trial judge will allocate by way of lump sum sufficient capital to enable the Claimant to purchase and adapt a property and was satisfied the sum sought was not excessive. Interim payment ordered in the sum of £740,000. However, the Judge declined to make any declaration that Roberts v Johnstone did not apply, nor that there should be any charge over the Claimant’s property. He confirmed that there is no reason in principle why the future accommodation needs of a claimant should not be met by renting a property.