This article originally appeared in Issue 1 (May 2019).
This was a brain injury claim following an RTA. Liability, subject to an argument on contributory negligence, was admitted. As to causation, the Defendant disputed the extent to which the Claimant’s injuries were attributable to any brain damage caused by the accident. The trial date was set for 2020. The imaging of the Claimant’s brain demonstrated a significant recovery. The argument at trial was going to be that any continuing problems the Claimant suffered were not as a direct result of the brain injury but to do with other life-changing events in the Claimant’s life and/or his excessive cannabis use. The Defendant’s insurer had been funding the Claimant’s care and rehabilitation since the accident but from September 2018 had expressed reservations about the care and stopped making payments to cover it.
The Claimant’s case on the interim payment application under CPR 25.7 was that a recent neuro-psychiatrist’s report supported the case that the Claimant suffered dysexecutive syndrome from frontal lobe damage which he contended established the necessary causal connection between the accident and his condition. It was therefore argued that, applying Eeeles, the court should assume that a figure for past losses and general damages would be around £900,000 on a conservative estimate, and therefore total interim payments of £710,000 (£260,000 had already been paid) would be well within that figure. The Defendant opposed the application on causation grounds arguing that it could not be assumed that the neuro-psychiatrist’s evidence would be accepted at trial and, if it was rejected, the Claimant had already received more than the claim was worth.
Spencer J rejected the interim payment application. Where there were genuine and substantive challenges to causation, the court could not award an interim payment by assuming that causation issues would be decided in the Claimant’s favour. Otherwise, interim payment applications would be mini-trials on causation and the court would have to hear evidence. CPR 25.7 was not intended to cover the situation where significant issues of causation were at large.
This restatement of principle by Spencer J is welcome and highly relevant to all interim payment applications made in brain injury cases where causation remains live. In clinical negligence, particularly birth injury claims, even where liability is admitted (and thus the prospect of an interim payment arises) there are frequently arguments as to causation of that injury, whether it is divisible and if so, what proportion, if any, of the Claimant’s injuries are attributable to the index negligence.
As Spencer J has observed the court will not conduct ‘mini-trials’ with evidence to determine causation issues at the interim payment stage. The case might usefully be compared with Goose J’s decision in Sym v. Buckinghamshire Healthcare NHS Trust  EWHC 2947 a back causation case last August, where although the defendant maintained causation arguments with respect to the claimant’s chronic back pain, it was accepted that the claimant would recover ‘something’, and the judge held that after a 60% reduction to reflect the Trust’s ‘concerns’, the claimant would be awarded an interim which incorporated a 40% estimated sum for past loss of earnings, equipment, travel, therapies etc.
CPR 25.7(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. As Eelesrecognises at paragraph 43, the judge’s first task is to assess the likely amount of the final judgment leaving out of account the heads of future loss which the trial judge might wish to deal with by PPO. If the causation evidence is such that the court cannot say with any degree of certainty what the likely amount of that final judgment sum is going to be because the issue of causation is very much at large, there is, in this commentator’s view, no proper basis for a substantial interim payment application even where ‘liability’ is admitted. ‘Liability’ in such a context simply means: breach of duty and some causation (some damage being an essential ingredient of the tort of negligence). Thus where there is a real rather than fanciful dispute on the issue of causation which means that the likely amount of final judgment could be less than the interim payment sought, it is no part of the court’s role to seek to engage in a preliminary determination of the causation issue. That is a matter which must be left to the trial judge.