Case No:  IHQ/07/0346

Neutral Citation Number: [2007] EWHC 3254 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL

Date: Wednesday, 24 October 2007

BEFORE:

MRS JUSTICE SWIFT

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BETWEEN:

COCO MEALING
Claimant
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CHELSEA & WESTMINSTER NHS TRUST
Defendant

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Mr P Rees QC (instructed by Kingsley Napley) appeared on behalf of the Claimant

Mr D Balcombe QC & Ms Neale (instructed by Weightmans) appeared on behalf of the Defendant
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Judgment

1.	MRS JUSTICE SWIFT:  The claimant, who is now ten years old, claims damages for personal injury and consequential loss suffered as a result of negligence on the part of doctors at the Chelsea and Westminster Hospital.

2.	In February 2000, when she was 2 ½ years old, the claimant developed pneumococcal meningitis.  As a result of substandard care on the part of medical staff at the hospital, there were two occasions when the condition went undiagnosed and untreated.  In consequence, the claimant suffered severe brain damage.  By letters from the defendant’s solicitors sent on 31 May and 28 June 2005, breach of duty and causation were admitted.  Judgment was entered against the defendant on 10 May 2006.

3.	In the period between June 2005 and April 2007, the defendant made five voluntary interim payments to the claimant, totalling £655,000.  In addition, the defendant paid the sum of just over £8,000 directly to the Compensation Recovery Unit.  By a notice filed on 25 April 2007, the claimant requested a further interim payment.  Evidence filed on her behalf indicated that she was seeking the sum of £1 million.  The application was originally to be heard earlier this year.  In July 2007, the defendant agreed to make a further voluntary interim payment of £110,000, making total interim payments of over £773,000 in all.  That further payment was made without prejudice to the claimant’s application for the larger sum.  It was agreed that the application should be adjourned to Monday of this week.

4.	On 24 May 2006, there was a case management conference before Master Yoxall.  He gave detailed directions for the progress of the case.  In particular, he ordered that the claimant should serve, by 31 January 2007, a final schedule of loss and damage and that the defendant should serve its final counter‑schedule by 29 June.  No trial window was identified at that time.  The case was listed for a further case management conference in July of this year.  In the event, the claimant was not ready to serve a schedule of loss by the end of January and the defendant agreed to an extension of  time for service until June.  The revised date for the defendant’s counter‑schedule was 1 November.  It was agreed that the further case management conference should be postponed until 29 November.  It was always anticipated that the parties’ experts’ reports would be served with, respectively, the schedule and counter‑schedule.  Thus the claimant’s evidence in support of the schedule has been served.  The defendant’s evidence will be served with the counter‑schedule on 1 November.

5.	In support of this application, the claimant relies on two witness statements from Mr Ross Brain, dated 24 May and 16 October 2007.  Eight experts’ reports are exhibited to Mr Brain’s latest statement.  There is also a witness statement from Mr William Mealing, the claimant’s father, in the substantive action.  It is extremely lengthy, running to 142 pages.

6.	The defendant has filed a witness statement from Ms Rena Field, of its solicitors, in opposition to the application.  As I have indicated, the defendant’s expert evidence is not yet available and is due to be disclosed with the counter‑schedule in the near future.

7.	The claimant suffers from severe cerebral palsy with associated cortical visual blindness, deafness and epilepsy.  She has no speech.  She is considered to have some understanding of cause and effect within the profound and multiple learning difficulties range.  She has limited mobility.  She has a life expectancy to the age of 60 years.  Needless to say, the claimant’s injuries have had a devastating effect on her and on members of her family.

8.	I turn now to the family circumstances.  The claimant’s parents were married in 1995.  The claimant was their second child.  At the time she sustained her injuries, she was one of three children.  Two further children were born subsequently.  At the time of his marriage, Mr Mealing was working as a fund manager for a prominent American trust company.  He had previous experience in merchant banking and investment management.  In his witness statement he says that he became disenchanted with his quality of life and decided to have a change.  Thus, in April 1996, he terminated his employment, intending to become an entrepreneur and promoter of investments.  He concentrated on developing two particular projects.  The first foundered because of technical problems.  The second, which was a hedge fund, was a complicated exercise which took several years to establish.

9.	Mr Mealing says that, by November 1999, he had raised one large sum of money for the fund and was expecting to receive further monies in the early part of 2000.  He says that, at the time of the claimant’s illness, he was devoting large amounts of time to this project.  If he had raised the monies which he was expecting, he would have made a very considerable amount of money from the fund, estimated at about £25 million.  The claimant’s mother had ceased work at the time of her marriage, or shortly thereafter.  Her first child was born in 1996, the claimant in 1997 and her third child in December 1998.  A nanny was engaged to assist in the children’s care, although Mr Mealing says that it was not their intention to have paid assistance with childcare in the long term.

10.	At the time of his marriage, Mr Mealing owned a house in Gloucestershire, which he estimates was worth £900,000‑£1 million.  In 1997, he purchased a substantial five‑floor house in Pelham Crescent in the Borough of Kensington and Chelsea.  He purchased the leasehold of the house for a price of £1.8 million, which he financed by way of a 100 % mortgage using his Gloucestershire house as collateral.

11.	After the claimant developed meningitis, she became very ill and for weeks her life hung in the balance.  She was eventually discharged from hospital in August 2000.  From the time of her discharge, she was provided with 24‑hour nursing care by the local PCT.  Plainly, this was a difficult and demanding time for her parents, who also had two other young children to care for.  Mr Mealing says that, as a result of the demands made upon him at that time, he was unable to devote the necessary time to pursuing his business interests.  All his spare time was spent supporting the family and assisting with the claimant’s care.  As a consequence, he claims, his plans foundered and the hedge fund which he was forming had to be wound up.

12.	Mr Mealing’s evidence is that he has had no income at all since April 1996.  Initially he had some funds, representing savings from his former employment, on which he was able to draw.  In 2000, he managed to obtain a new mortgage on the London house.  Mr Mealing’s lack of income and increased expenses resulted in financial difficulties, which caused him to make a decision to sell the London house.  The house was on the market for two years but remained unsold.  Mr Mealing said that, during this period, he attempted to obtain employment but failed.  His creditors were demanding payment.  In October 2003, both the London and the Gloucestershire houses were repossessed.  At that point, the claimant’s parents decided to have what has been described as a “sabbatical year” in France.  The whole family moved to the South of France where they took rented property.  Mr Mealing says that this was made possible by loans totalling £340,000, made by family and friends, and a loan from his pension fund of £400,000.  Meanwhile he was, he says, compelled to transfer to his parents‑in-law his collection of antiques, works of art and fine wine, which he estimates to have been worth about £550,000 in total.

13.	Once the family were in France, the PCT continued to provide full-time care for the claimant.  The claimant’s parents met the costs of the carers’ travel to and from the UK and accommodated them at their rented property.  In September 2004, the claimant’s parents decided to remain in France permanently.  Mr Mealing has advanced a number of reasons for the family’s decision to settle in France.  One is that the warm weather is beneficial to the claimant.  Another is the proximity of their chosen location (which is near Nice) to Monaco and Switzerland where the claimant’s father hopes to establish useful business contacts.

14.	In September 2004, the PCT withdrew its funding for care.  From that time until about October 2005, the claimant’s parents had no paid care for her, save for the assistance of a local nanny for a few months.  They provided the major part of her care themselves until October 2005.

15.	Liability and causation had been admitted by June 2005 and the first interim payment of £200,000 was made in July 2005.  Subsequent payments have been made on a regular basis.  From October 2005, the claimant’s parents engaged paid care for the claimant through an English agency.  This involved carers travelling from England to Nice and then to the claimant’s home.  This arrangement has continued ever since.  The reason why matters have been arranged in this way is said to be the difficulty in obtaining local carers (in particular, English‑speaking local carers) whom the claimant’s parents wish to employ.

16.	Between October 2005 and October 2006, the claimant had one carer during the day, while her parents provided any necessary night care.  From October 2006, the care was increased so that two carers were available during the day.  The cost of the current care package, inclusive of travelling costs, is, I am told, approximately £250,000 a year.  In August 2005, the claimant’s parents engaged a case manager based in England to supervise and co‑ordinate the implementation of the care package and to deal with other aspects of the claim.  Once again, it was necessary for the case managers instructed to travel to France in order to consult with the claimant’s parents.  The first case management company proved unsatisfactory and a replacement has now been instructed.

17.	Since going to France, the family have lived in three properties.  They have occupied their current home for approximately two years.  This is a substantial rented property in a scenic position with an attractive garden and pool area.  According to the architect who has reported for the claimant, the property is not ideal for the claimant.  Certain areas of the house are split level, which makes access for her impossible.  Her bedroom is small and she does not have access to a suitably sized bathroom.  In addition, there are steps down to the swimming pool which she uses regularly.  The architect recommends that adaptations should be made to address these problems.  The cost of these adaptations, inclusive of the cost of reinstatement to the current condition (which would be required by the owner) would be £185,000.  It is submitted on behalf of the claimant that these adaptations should be carried out pending the identification of a suitable, permanent alternative home for the family.

18.	It seems that, between October 2003 and October 2005, the rent for the various properties occupied by the family was paid out of the monies loaned to them by family and friends.  Between October 2005 and May 2007, however, the claimant’s interim payments were used to pay the rent for the property at the rate of about £105,000 per annum.  During this period, interim payments were also used to fund the living expenses for the whole family at the rate of about £40,000 per annum.  Until 24 May 2006, the Court of Protection was responsible for approving payments made to Mr Mealing for these and other purposes.  On that date, Mr Terence Donovan, of the claimant’s solicitors, was appointed as professional receiver or deputy.  Since then, he has been responsible for approving the various payments made.

19.	As I have said, until May 2007, those payments included the entire rent of the property and the living expenses for the whole family.  I am told that, in May 2007, Mr Donovan adopted a change of policy.  While it is intended that the claimant will argue at trial that the defendant is liable to pay the full amount of the rent and living expenses, Mr Donovan recognised that there was a risk that the claimant may not succeed in that argument.  He, therefore, decided that, from that time, the claimant should pay only a quarter of the rent and a proportion of the total living expenses.

20.	Mr Mealing says that, since the move to France, he has attempted to re‑establish himself in the investment business and to obtain employment.  Whilst he has made some useful contacts, he has not yet obtained any form of remunerative work.  It is not known whether he will manage to do so in the future.  Meanwhile, the last interim payment of £110,000 was made in July.  I am told that that has been used to defray ongoing expenses.  There is now only about £16,000 left in the deputy’s account.  There are, at the same time, monies owing to carers in the sum of approximately £35,000.  

21.	The claim for the future is based on the premise that the family will remain in the South of France.  It is intended that the claimant should purchase a house of a quality commensurate with the family’s former London home at a capital cost which is estimated at £3.4 million.  The claimant’s expert estimates that adaptations costing, in round figures, £1.1 million will be necessary.  That sum includes the costs of relocation and the reinstatement of the house to a condition which would be saleable thereafter.  It is not proposed that the claimant’s parents should make any contribution to the purchase cost of the property, or the costs associated with alteration, relocation or reinstatement.  It is apparently envisaged that the claimant, her parents, and her carers will remain in that house for the whole of her life.  No credit is given in the schedule of loss for the accommodation which the claimant would have required if she had remained uninjured.  No credit is given either for the accommodation which her parents and siblings would have required in any event.

22.	The claim for future care is based on the assessment of Mrs Maggie Sargent.  She advocates the establishment of a team of 12‑15 carers, of whom perhaps four would be flown in from the UK on a regular basis.  This team would provide two carers during the day, together with a waking night carer.  An English case manager would also be employed.  The claim in the schedule of loss is based on an estimated cost of just over £293,000 per annum for care and case management.  (It is, however, acknowledged that the issue of night care will have to be reviewed before the trial).  The annual cost quoted includes an uplift of about £4 an hour, to reflect the fact that staff will be working in France.  It also includes the cost of travel for carers and the case manager from the UK in the sum of £8,500 per annum.

23.	There are future claims for occupational therapy, physiotherapy, speech and language therapy and assistive technology training.  It is intended that therapists should be engaged from the UK.  The cost of occupational therapy for the claimant’s lifetime is claimed in the sum of £28,500.  The travelling costs of the occupational therapist over this period are estimated at over £117,000.  The cost of physiotherapy is claimed in the sum of just over £64,000.  Physiotherapy travel costs are claimed in the sum of almost £204,000.  The cost of speech and language therapy is estimated at £28,000, whereas the costs of travel are estimated at over £36,000.

24.	In addition to the future claims I have already mentioned, there are the usual items for aids and equipment, additional household expenditure, DIY, decorating, gardening and transport, loss of earnings, holidays and the costs of receivership.

25.	CPR 25.7 sets out the conditions to be satisfied before an interim payment can be ordered.  Save for those conditions (which it is agreed are satisfied in the present case) no guidance is given, although paragraph 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.

26.	The decision whether to order an interim payment, and if so how much, is a matter for the court’s discretion.  That discretion must be exercised so as to give effect to the overriding objective to deal with the case justly.  Various authorities over the years have established the following principles:
(1) The claimant does not have to demonstrate that the specific sums are required to cover any particular need, over and above the general need that a claimant should be paid his or her damages as soon as may reasonably be done:  Stringer v McArdle [1994] 1WLR 1653.  
(2) The court is not concerned with what the claimant proposes to do with the money received (Campbell v Mylchreest [1998] PIQR P20), particularly where there is the involvement of a professional deputy and the Court of Protection.  
(3) Where the effect of an interim payment would be to prejudice the conduct of the trial in some way (for example because expenditure of the money might pre‑empt one of the issues to be decided), that is a factor that the court should take into account when deciding whether to order an interim payment: Campbell.  
(4) A proportion of damages as high as 75 % has, in certain cases, been found to represent a reasonable proportion of the claim.

27.	The claimant’s schedule values her claim at about £17 million.  Thus, it is said, an interim payment of £1 million, even when added to the payments already made, would represent only a small proportion of her total claim.  She is plainly entitled, it is said, to that sum, and it should be paid as soon as possible.

28.	The defendant opposes the application on what are essentially three different bases.  First, Mr Balcombe QC, on behalf of the defendant, submits that the claim is significantly inflated and that, in reality, it is worth far less than the amount contended for.  He submits that, if that is right, then total interim payments of over £1.7 million would not represent a reasonable proportion of the likely lump sum award of damages.  Mr Balcombe also contends that the award of an interim payment of the size sought is likely to prejudice the conduct of a fair trial, in that it will or might well pre‑empt the fair determination of at least two major issues, namely whether it is reasonable for the claimant to be based in France, and whether part of a final award of damages should take the form of an order for periodical payments, and if so how much.  The third basis of objection is that the claimant’s advisers have not hitherto progressed her claims as diligently as they should have done.  It is argued that, if a further very substantial interim payment is made now, this will deprive them of any incentive to move the case on to trial with proper expedition

29.	Underlying the defendant’s objections is the question of whether, had the claimant’s injuries not occurred, the family would have been able to maintain their previous affluent lifestyle, or whether in reality the claimant’s father’s financial prospects were not as promising as he has represented in his witness statement.  Mr Balcombe pointed out that, at the time of the claimant’s meningitis, her father had not been in paid employment for almost four years.  He questioned why, if the fortunes of the fund which he had established were about to prosper, one of his co-directors in the fund should have resigned only a few weeks or months previously.  The defendant is currently investigating the issue of Mr Mealing’s financial prospects by means of applications for specific disclosure and requests for information.  It seems likely that the issue will have to be explored fully at trial.  Its relevance is this; if the family’s financial position is likely to have been more modest than represented, this would have a significant impact on the claim.  In particular, the claim for future accommodation (which is predicated on the basis that the claimant is entitled to accommodation comparable to the Pelham Crescent house) would be much reduced.  The basis for the claim for an award for gratuitous care, (based on Mr Mealing’s high earnings potential) would also be undermined.

30.	Whatever the eventual outcome of this issue, the defendant contends that the claims for past and future accommodation are inflated.  As to the past claim, the defendant contends that the claimant cannot be entitled to claim an award covering the whole of the rent for the family house, nor the living expenses for the whole family.  Even after May 2007, when the deputy reduced the amount paid by the claimant, she was still contributing a quarter of the rent and living expenses, a proportion which the defendant contends is unreasonably high.

31.	I have already referred to the claim for gratuitous care by the claimant’s parents.  The value of their care, assessed on a commercial basis, is put by Mrs Sargent at £143,000.  The claimant seeks an uplift of 250 % in respect of the care given by both parents, to reflect the loss of earnings said to have been suffered by Mr Mealing as a result of her injuries.  This claim is, therefore, for over £350,000.  For the purposes of this application, Mr Balcombe was content to accept Mrs Sargent’s assessment of the value of parental care, although he indicated that this may well be challenged at trial.  He pointed out that the usual award would be a discounted amount to reflect the fact that the care had been gratuitous and that no tax or national insurance was payable thereon.  Thus, his contention was that the award should be no more than £105,000.  Even if there were to be an uplift, he contended that it should not be as great at 250 %.  In short, he contended that this claim was inflated.

32.	I turn now to the issue of future care.  The defendant will argue at trial that the decision of the claimant’s parents to settle in France (in particular in such an expensive area as that around Nice) does not satisfy the test of reasonableness, which is a fundamental limitation on the amount that is properly recoverable in a claim for damages.  Even if that decision were held to be reasonable, the defendant would contend that the family’s insistence on importing carers and therapists from the UK, both in the past and in the future, is wholly unreasonable.  There will be an issue about the availability of carers locally, and in particular of English‑speaking carers.  There may well be a further issue about the need for English‑speaking carers, having in mind the level of the claimant’s disabilities and, in particular, her deafness.

33.	Contained within Mr Balcombe’s written submissions is a table setting out those sums within the schedule of loss that are referable to the claimant’s residence in France.  They amount to almost £2.8 million.  He contends that the defendant should not have to pay that sum.  As I have already pointed out, travel costs for therapists exceed the cost of therapy by a considerable factor.

34.	In relation to the claim for future accommodation, which amounts to £4 million, the defendant points out that it takes no account of the accommodation which the claimant’s parents and siblings, or the claimant herself, would have required in any event.  There is no suggestion that the claimant’s parents will contribute to the cost of the property that is intended to house them and the claimant for the next 50 years.  Mr Balcombe suggests that, in effect, the claim for future accommodation is a thinly disguised claim for loss of earnings on the part of the claimant’s father, to which he is not entitled.  Criticism is also made of the claims for future transport and loss of future earnings.  I need not deal with these at this stage.

35.	The defendant contends that these matters demonstrate that the value of the claim has been significantly inflated and that, as a result, I should be cautious about accepting the valuation of the claim put forward on behalf of the claimant.  Mr Balcombe suggests that I should not accept, for the purposes of this application, that the claim will be worth any more than other claims where claimants have suffered similar injuries.  He has prepared a table of recent awards in which the amount awarded by way of lump sum varied between £3 million and £9.545 million.  He submits that there is no reason to believe that the present case would not fall within that bracket.

36.	For the claimant, Mr Rees QC argues that the “bracket approach”, as he termed it, is inappropriate.  Rather, he says, I must look at the particular circumstances of this case, which has features taking it outside any bracket.  He refers, by way of example, to an unreported case, in which he has been involved and which was settled for a sum which would, on a conventional lump sum basis, have been £12 million.  That was a case where the claimant had a remaining life expectancy of 50 years (as here) and where the annual cost of care and case management was about £250,000, less than in this case.  He submits that this is an example of a case which, because of its particular facts, fell outside the usual bracket of awards, as does the present case.

37.	As to the specific allegations of inflation of the claims for damages, Mr Rees relies on the contents of Mr Mealing’s witness statement and its account of his financial position and prospects as at February 2000.  In connection with the claimant’s payment of rent and living expenses for the family he refers me to the cases of M v Leeds Health Authority [2002] PIQR Q4 and Iqbal v Whipps Cross University Hospital NHS Trust [2007] Medical Reports 1997.  In M, the claimant and her family had moved from a detached house (which I take to have been privately owned) into a bungalow suitably adapted for her use.  Sullivan J rejected the defendant’s contention that there should be a deduction from the award to reflect the value to the claimant’s parents of having a house provided for the whole family.  Instead, he deducted only the costs which the claimant would have incurred from the age of 25 in purchasing a home for herself.  In Iqbal, the claimant’s parents lived in a house before his birth, their rent being paid by way of housing benefit.  Following the claimant’s birth, a bungalow was purchased on behalf of the claimant and he, with his parents and his carers, were accommodated there.  The defendant argued that a deduction should be made for rent which should be paid by the claimant’s parents to the claimant.  Sir Roger Bell rejected that contention on the ground that it would mean handing over housing benefit from one public body to another, and also that “… it is not just to deprive parents of the incidental benefit of living rent free, when there are so many sacrifices on their part, most obviously the detriment to their quality of life ...” which would otherwise go uncompensated.  Mr Rees relies on those cases in support of his contention that the incidental benefit derived by the claimant’s parents and siblings should not be taken into account when computing the damages for past or future accommodation costs.

38.	As to past and future care, Mr Rees submits that the claimant’s parents are entitled to live where they like.  Their choice of the South of France was founded on logical reasons, not least the claimant’s best interests, and was not unreasonable.  They had made efforts to obtain English‑speaking carers and therapists but had failed so far; they are still trying.  In the absence of suitable local care it is not, he says, unreasonable for them to bring in carers and therapists from the UK.  Mr Rees denies that there has been any artificial inflation of the claimant’s claims.  The unusually high sums claimed are, he says, attributable to the unique features of this case.

39.	I shall now go on to deal with the defendant’s contention that an interim payment of the size sought is likely to prejudice the conduct of a fair trial.  There are two parts to this argument.  It is argued that it might have the effect of pre‑empting the court’s decision, first, as to the reasonableness of the decision to live in France and, second, as to the appropriate amount to be awarded by way of periodical payments.

40.	Mr Balcombe suggests that, if the interim payment were used to fund or help fund the purchase of a property in the South of France, or to pay for adaptations to the rented home currently occupied by the family, that fact could be used (and would be used) to support an argument that the family were now settled in France and would, in effect, present the trial judge with a fait accompli.

41.	Mr Rees submits that it is highly unlikely that a judge would find that living in France is unreasonable.  He contends that, in the absence of suitable local English‑speaking carers and therapists, the cost of importing care and therapy from the UK is plainly not unreasonable.  Therefore, he contends, the arguments available to the defendant (and indeed to both parties) would be unaffected by the making of a further interim payment.

42.	The court is obliged to consider an award for periodical payments and has the power to make such an award, even without the consent of the parties.  So far as periodical payments are concerned, it is argued by the defendant that, if too great a proportion of the award is paid by way of interim payments and spent before the trial, the trial judge may not be free to allocate as large a proportion of the award to periodical payments as he or she would wish.  The defendant, therefore, contends that, in considering whether or not the interim sum sought represents a reasonable proportion of the likely award, I should include only the capital sum which might reasonably be recoverable in respect of all non‑recurring costs, and should not take account of any future recurring costs, all of which may be susceptible to an award for periodical payment.

43.	Mr Balcombe submits that there are features of this case that might render a judge inclined to order a greater proportion of the final award by way of periodical payments than would otherwise be the case.  He points to the fact that, to date, £250,000 of the claimant’s damages has been used to pay rent and living expenses for the family.  He says that there must be real concern that, if appropriate safeguards are not in place, the funds will be used to pay for or subsidise the family’s lifestyle.  There would be less opportunity for this to occur if the damages were to be paid annually by way of periodical payments.  He, therefore, contends that the option of making an award for periodical payments should be fully preserved.

44.	For the claimant, Mr Rees submits that my approach should not be to protect all future heads of loss from being paid by way of interim payment.  He argues that it is highly unlikely that all future recurring costs would be made the subject of a periodical payments order.  Far more likely, he suggests, is the restriction of a periodical payments order to care and case management costs.  He seeks to demonstrate that, in that event, interim payments totalling £1.77 million would not represent an unreasonable proportion of the total lump sum figure, even if the total valuation of the claim was very considerably lower than that advanced by the claimant.

45.	In the course of their submissions on this and other points, counsel referred in detail to the figures claimed for various heads of damage, to the party’s contentions thereon, and to possible awards that a court might make.  I have considered all these matters but do not propose to deal with them in any detail.  At this stage, and particularly in view of the fact that the time has not yet come for the defendant to serve its counter‑schedule and expert evidence, it would be inappropriate for me to adopt anything other than a broad brush approach to the valuation of the claim and the various heads of damage.

46.	I turn now to the third objection raised by the defendant, namely delay.  Mr Balcombe points out that over two years have passed since liability and causation were admitted.  The case has still not been set down for trial.  The Master permitted a generous period for service of the schedule of loss but the claimant failed to meet that deadline, thereby necessitating an agreed extension of time.  Mr Balcombe points out that there are still fundamental matters that remain uncertain.  The claimant has not identified the discount rate for which she will be contending.  The question of the availability of local carers has not been resolved, nor has the position as to the tax treatment in France of the claimant’s damages.

47.	Mr Balcombe says that no progress has been made on these matters and that there has also been a lack of proper disclosure and a lack of co‑operation in relation to the requests for information which had been made by the defendant.  He submits that if there are continued interim payments of the magnitude contended for, there can be no realistic expectation that the claimant will get on with the case.

48.	For the claimant, Mr Rees submits that there has been no culpable delay by the claimant.  Her advisers had to start from scratch on the issue of quantum once liability and causation had been admitted.  Only one extension of time has been sought.  There have been no repeated failures to meet deadlines.  He points out that the Master had not set a trial window at the time of the case management conference in 2006, but will no doubt do so on 29 November.  He submits that it is not surprising in a case of this complexity that there are still some issues outstanding and under investigation, but those issues are being dealt with.  He submits that there has been no lack of co‑operation with the responses to requests for information and for documentary evidence.  He says that this is not a case where the claimant is putting off the trial.

49.	At the trial of this action, it is likely that there will be argument about two fundamental issues:  first, the financial prospects of the claimant’s father, had her injuries not occurred; second, the reasonableness or otherwise of the family’s decision to stay in France and to incur the cost of importing carers and therapists from the UK.  The outcome of these issues will have a significant impact on the likely awards for damages for past and future care and therapy and past and future accommodation costs.  It would be quite wrong for me to express any view as to the way in which the court is likely to resolve these issues.  I can, however, say this: the issue of the claimant’s father’s financial prospects plainly merits investigation.  The reasonableness or otherwise of what has been termed the “hybrid” claim for care (whereby carers are imported from one country to another) is a novel issue which the trial judge will have to determine.  The reasonableness of the claim for accommodation (whereby it is proposed that the claimant should purchase a very high value property and provide free accommodation for her parents and, as long as required, for her siblings) will also be a major issue and may involve a reappraisal of the decisions in the cases of M and Iqbal.  The proposed uplift for the figure for gratuitous care is, so far as I am aware, novel in its scale.

50.	All these factors make even approximate valuation of this claim more than ordinarily difficult.  The scale and nature of the issues between the parties is such that I am satisfied that I should, for the purposes of this application, take a cautious approach to the valuation of the claim.  In the circumstances, I regard it as appropriate, as Mr Balcombe invites me to do, to look at the bracket of awards for claimants with similar injuries.  I bear in mind that the claimant has a longer expectation of life than many such claimants, and that her disabilities are such as to require a high level of care.  Taking those factors into account, it seems to me that it would be appropriate to regard her case for these purposes as falling at the higher end of the bracket, namely in the order of £6-9 million.  Interim payments totalling £1.77 million would represent only about 20-30% of such an award, which could not, of itself, be described as unreasonable.

51.	There are, however, other matters to be considered.  I turn now to consider possible prejudice to a fair trial.  I am not persuaded that there is any real likelihood that the judge’s determination of the reasonableness of the decision to live in France, and to use carers and therapists from the UK, would be in any way pre‑empted by the making of the interim payment sought.  The family has been living in France for four years and appear to be settled there.  The care regime has already been in place for two years.  There does not seem to be any intention to use the interim payment to fund the purchase of a permanent home in France.  Indeed, on the claimant’s case, it would be wholly insufficient to do so.  Even if part of it were to be used to carry out adaptations to the current home, that would not, it seems to me, affect the judge’s decision as to whether the family’s proposals for future accommodation and care were reasonable.  The claimant would, of course, have to take the risk that the trial judge might consider the expenditure on adaptations to have been unnecessary and unwarranted, and might not make any award in relation thereto.

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.

54.	I have taken all these matters fully into account when making my decision.  Having considered the history of this litigation, I am not satisfied that the claimant’s advisers have been guilty of any culpable delay or procrastination, although it cannot be said that the claimant has hitherto been progressed with any great urgency.  This must change.  There is to be a case management conference on 29 November and I have no doubt that, on that occasion, the Master will make detailed directions and set a timetable with the aim of achieving resolution of the action as soon as possible.  Meanwhile, I bear in mind that the availability of repeated large interim payments can have the incidental effect of providing an incentive to delay and that it would be undesirable if this court were to do anything that would encourage such delay.  This consideration is not determinative, but I bear it in mind.

55.	I am told that, whatever directions are made on 29 November, it is unlikely that the claim will be heard before October of next year.  While the issue of the claimant’s needs should not be regarded as determinative, nevertheless it is a factor that I should have in mind.  At present, the funds in the deputy’s account are low and there are carers’ bills to pay.  If the claimant is to have the care over the next year that she requires, this will have to be paid for.  There are, in addition, other expenses that will have to be paid.

56.	Taking all these factors into account, together with the legal principles I have set out, I am satisfied that it is appropriate for me to make an order for an interim payment today, although not in a sum as large as that sought by the claimant I take the view that the appropriate figure is one of £250,000.

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.

58.	As to the timing of the payment I can see no substantial reason why the defendant should not be able to pay the whole of this money within 14 days.  Therefore, it should be paid by close of business 14 days from today’s date.

59.	As to the issue of costs, the claimant contends that in effect she has won this issue, although she did not get the amount that was being contended for.  Nevertheless, she has received a substantial interim payment.  Nothing was on offer before the hearing and Mr Rees submits that, had the hearing been vacated for any reason, the likelihood is that nothing would have been paid.  So the outcome is success on the part of the claimant.

60.	For the defendant, Ms Neale submits that, as a public authority dealing with public funds, the defendants had a duty to investigate and scrutinise the application for an interim payment.  They had inadequate information about the ways in which interim payments previously paid had been expended.  They were concerned at the possibility that the claimant’s damages might be being dissipated and it was for those reasons that they resisted this application.  She points out that there were indications, both in the defendant’s evidence and in submissions made by Mr Balcombe, that the defendant may be agreeable to some monies being made available, provided that the defendant could be confident that it was needed and would not be used for any improper or untoward purposes.  She submits that, rather than award the claimant her entire costs, one alternative that I may consider is to award a proportion of costs.  

61.	It seems to me that the whole issue of the propriety of the expenditure of interim payments will have to be fully investigated at the trial.  Until that has been done, it is difficult to reach a decision as to the proper award of costs in relation to this application.  If, for example, it were to be found that there had been improper expenditure of large proportions of the interim payments in the past, then the whole issue of whether it was necessary and proper for this application to have been made may fall to be determined.

62.	In those circumstances, which I regard as unusual, I consider that the proper order to make is to reserve the costs to the trial judge.