Interim payment application successful to tune of £1.2m

FP v Taunton & Somerset NHS Trust (Queen's Bench Division" 31 July 2009)

The claimant alleged that the defendant mismanaged her ante-natal care and screening as it failed to reveal that her unborn child had congenital abnormalities. Had she been aware of the abnormalities she would have elected to terminate the pregnancy. Her son has severe disabilities and an impaired life expectancy" the degree of which is a major issue between the parties" requiring a high level of care for life valued at £250 000 per annum. Liability was admitted by the defendant in June 2006 and judgment entered against the defendant Trust by consent in September 2006 for damages to be assessed.

This judgment dealt mainly with the claimant's application for an interim payment. Previous interim payments had been made. The claimant, who brought the claim on behalf of her son, sought a further interim payment in the sum of £1.5m to cover costs of providing care for the child and alternative accommodation for the family.

The court was required to make an estimate of the full value of the claim at trial, of which the judge estimated the final judgment at £1.3m.

It was acknowledged by the court that at trial the judge may wish to consider a periodical payment order. It was agreed that the interim payment application must be determined in accordance with Eeles v Cobham Hire Services Ltd (2009). In Eeles it was held that an interim payment should be limited to reasonable proportion of likely capital award in cases where a periodical payments order is likely. A conservative approach was adopted when quantifying future loss. An interim payment of £1.2m was reasonable.

The issue of life expectancy was not fully explored but the judge considered, taking a cautious view, that the child's life expectancy was 20 years. The claimant successfully argued that the multiplier should be assessed as "a term certain".

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