UK: The Future For Interim Payments In Catastrophic Injury Cases

Last Updated: 4 January 2010
Article by Fiona Lawrence

Part 25 of the Civil Procedure Rules (CPR) allows a court to make an order for an interim payment when the defendant is insured or is a public body and where the claimant has obtained judgment or can show that it is likely that if the case went to trial, he would secure judgment for a substantial figure.

CPR 25.7 provides that the interim payment should be for a sum no more than "a reasonable proportion of the likely amount of the final judgment".

Prior to the amendment of the Damages Act 1996 by the Courts Act 2003, the usual practice of judges hearing applications for interim payments was to consider both parties schedules of loss and then make a conservative preliminary estimate of the likely total final award. The judge would then order an interim payment which allowed a comfortable margin in case his estimate turned out to be too generous.

Since 2003, a trial judge has had the power to make an order for periodical payments, regardless of the wishes of the parties to an action. Consequently, awarding large interim payments can affect the trial judge's freedom to order periodical payments.

In Cobham Hire Services Limited v Benjamin Eeles [2009] EWCA Civ 204, the Court of Appeal gave guidance on the approach which a judge should take when considering an application for an interim payment in a high value personal injury case where the trial judge may wish to make a periodical payments order (PPO).

Benjamin Eeles suffered a serious head injury in a car accident when he was nine months old. Liability was not disputed and judgment was entered with damages to be assessed at a later date when it was possible to properly quantify the claim as Benjamin was still developing.

Interim payments amounting to £450,000 were made and used, in part, to extend the five bedroom family home and provide a therapy room.

When Benjamin was 11, his parents, with the agreement of some of their medical advisers, concluded that the current family home would not meet his increasing needs. Brightlingsea Hall, a house with 9 bedrooms and a bungalow in the grounds, came on to the market in 2008 and an application was made for a further interim payment of £1.2 million to allow the purchase and refurbishment of this property.

Foskett J approached the application by making a conservative valuation of the overall capital value of the claim at £3.5million. He observed that an interim payment of £1.2million would, if granted, bring the total sum of interim payments to just less than half of the full value of the claim and that it would not, therefore, exceed a reasonable proportion of the likely final award for the purposes of the CPR part 25.7.

The respondent was ordered to make a further interim payment of £1.2 million and subsequently appealed.

Lady Justice Smith in the Court of Appeal said that although the power to order an interim payment was discretionary, it was not unfettered and a judge had no authority to make an order for more than a reasonable proportion of the likely final judgment. In a case where a PPO was likely to be made, the amount of the final judgment was the actual capital sum awarded.

The capital sum is likely to consist of past losses, damages for pain and suffering, interest and accommodation costs. It does not include the notionalised capital value of the heads of damage which are likely to be made the subject of a PPO e.g loss of earnings, costs of care, case management fees, therapies, equipment, increased holiday costs and Court of protection costs.

The appeal judges assessed the likely amount of the capital award in Eeles to be £590,000. As the trial judge was likely to make one or more PPO's, there was very little room for a further interim payment, taking in to account the payments of £450,000 previously made. The Defendant's appeal was allowed and no further interim payment was ordered.

The Court of Appeal went on to give guidance on the approach to be adopted when considering interim payment applications in substantial personal injury claims.

The judge's first task is to assess the likely amount of the final judgment or capital sum to be awarded, leaving out of account the heads of future loss which the trial judge may wish to deal with by PPO. This assessment should be carried out on a conservative basis.

The judge is then entitled to award a reasonable proportion (which may be a high proportion) of that sum as an interim payment.

If the judge can confidently predict that the trial judge will wish to award a larger capital sum than that covered by general and special damages, interest and accommodation costs alone, he may include additional elements of future loss in his estimate of the likely amount of the final judgement.

Before taking such a course, the judge must be satisfied by evidence that there is a real need for the interim payment requested. For example, where the application is for money to buy a house, he must be satisfied that there is a real need for accommodation now, as opposed to after the trial and that the amount of money sought is reasonable.

The judge does not need to decide whether the particular property proposed is suitable. That is a matter for the Court of Protection, where it is involved. He must not, however, make an interim payment order without first deciding whether expenditure of approximately the amount he intends to award is reasonably necessary.

If satisfied, by evidence and to a high degree of confidence, that there is an immediate need for a capital sum that exceeds a reasonable proportion of general damages, special damages, interest and capitalised accommodation costs, the judge will be justified in making the interim payment requested.

The guidance provided in Eeles has been applied in various cases over the last 6 months. The claimant in Chrissie Johnson v Serena Compton-Cooke [2009] EWHC 2582 (QB). was aged 19 and had suffered a severe brain injury in a road traffic accident. An application was made for an interim payment of £1.67million, to include a lump sum of £1.1million for accommodation and also care costs for 12 months.

The applicant submitted that the final capitalised award at trial would be approximately £3.25 million. The judge, however, estimated a lump sum payment of around £1.75 million, since some of the applicant's expenditure could be regarded as excessive and it was not possible to predict whether the trial judge would capitalise all heads of claim or wish to make a PPO.

Previous interim payments amounted to £900 000 and the judge ordered a further interim payment of only £600 000 which he considered amounted to a reasonable proportion of the conservatively assessed final sum. There was no provision in the award to allow the applicant to obtain new accommodation as the judge considered the current rented property to be adequate. This case re - enforces the requirement not to fetter the trial judge.

By contrast, in FP v Taunton & Somerset NHS Trust [2009] EWHC 1965 (QB), a wrongful birth claim, interim payments of £500,000 had already been made and the applicant requested a further sum of £1.5 million to cover the cost of alternative accommodation and of providing care for two years.

The judge assessed the capital value of the claim at around £1.8 million and awarded an interim payment of £1.2 million. He was satisfied of the need for accommodation and the reasonableness of the figures. Whilst the interim payment of £1.2million was a high proportion of the likely amount of the final judgment, a reasonable proportion could be a high one, provided that the assessment was conservative.

Accommodation was also an issue in Kirby v Ashford & St Peter's Hospital [2008] EWHC 1320. The claimant was a child aged just over 2.5 years, with spastic quadriplegia as a result of negligence at birth.

An interim payment of £850,000 had been made to cover the cost of care and accommodation and a further interim payment of £350,000 was sought by the applicant, who estimated that the capital sum recoverable at trial would exceed £1.2 million. He and his family were living in rented accommodation as a short term measure and had identified a property which would apparently meet the applicant's needs.

The Court held that it was likely that a capital award of at least £909,885 would be made by the trial judge and that the current interim payment of £850,000 represented a high proportion of that sum. There was, however, a reasonable need for a property to be purchased before trial as it was not reasonable for the applicant to remain in inadequate and unadapted premises until the date of trial.

The value of the property selected by the applicant, however, was in excess of the estimate provided by his accommodation expert. The judge allowed purchase costs based on the expert's assessment and ordered an interim payment in the sum of £150,000.

It is clear from these decisions that claimants will have to give tactical consideration as to the timing of applications for interim payments and to the sums sought. They will be obliged to establish a need for an interim payment and this will require increased preparation, with detailed schedules and expert evidence as mini quantum trials take place at an interim stage. There is also likely to be a greater scrutiny of the amount spent on accommodation and this may be limited to the sum which is supported by expert evidence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.