Interim Payments and Periodical Payments Orders
– Summer Braithwaite v Homerton University Hospitals Foundation Trust (22 January 2008)

Summer Braithwaite suffered from quadriplegic cerebral palsy that was caused during her birth. Liability was admitted and an application was made for an interim payment of £850,000 so that a suitable property might be purchased for her.

Whilst the claim was estimated to be worth approximately £3.6 million, only about £200,000 related to past losses (general damages and past care). Consequently if she was to purchase the property it was clear that the Claimant would have to capitalise some of the remainder of her claims.

The Defendant argued against the request for an interim payment on two grounds. Firstly CPR 27.4 stated that the court must not order an interim payment for more than a reasonable proportion of the likely amount of the final judgement. The Defendant argued that the “reasonable proportion” could only refer to the capital amount of the final judgement and not to any periodical payments.

Secondly the Defendant argued that at such an early stage in the proceedings, the court should not make a decision that reduced the Trial Judge’s options for making a periodical payments order.

The Judge said that although past losses might only be in the order of £200,000, it did not follow that at trial a capital payment at that level only would be ordered. Instead the court would consider whether to make a capital payment that represented both the past losses and part of the future losses.

If at trial it was likely that a capital sum in excess of £850,000 would be awarded, the Judge concluded that he was able to order the interim payment. He felt able to confidently predict that at trial an order for a capital sum in excess of £850,000 would be made as otherwise the Claimant’s accommodation needs simply could not be met.

Comment

This decision is clearly a blow to Defendants seeking to oppose applications for very significant interim payments. In effect the Judge considered that the immediate needs of the Claimant were the overriding factor. The only crumb of comfort for Defendants is in the Judges’ additional comments that to make an interim award the court had to be satisfied that it was likely that at trial a capital sum of the kind of figure proposed would be made. The judge conceded that if the likely outcome at trial was uncertain there was no jurisdiction to make the order.

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Interim Suspension Orders – Dr Sathananthan v GMC

Dr Sathananthan had worked both as a Consultant Psychiatrist within the NHS and at a private clinic specialising in the treatment of addiction. In 1985 he had been charged with serious professional misconduct for issuing private prescriptions of diamorphine and methadone in an irresponsible manner and for abusing his professional position. Although the allegations concerning the prescribing of controlled drugs were found to be proved, he was found not guilty of serious professional misconduct and was allowed to continue practicing.

In 2006 further complaints concerning Dr Sathananthan’s prescribing practice were made. At a hearing before the GMC’s Interim Orders Panel an order for an interim conditional registration was made which barred Dr Sathananthan from treating patients suffering from drug addiction and required him to confine his medical practice to posts within the NHS.

Thereafter the GMC received further complaints and in December 2007 they sought and obtained an interim suspension order. Subsequently the GMC sought to extend the suspension for an additional 12 months to enable them to complete their enquiries. Dr Sathananthan cross applied for the suspension order to be terminated on the grounds that suspension was a drastic step and the GMC had not offered any explanation as to why further time was required.

At a hearing Mr Justice Forbes granted an extension to the suspension order but for a period of 6 months only. An interim suspension order was proportionate and necessary for the protection of the public.

Comment

An interim suspension order is clearly a draconian remedy that will only be ordered in the most serious of cases. An extension to a suspension order was justified in this case as the alleged irresponsible prescribing of controlled drugs (particularly in the large amounts alleged in this case) was a serious abuse. Nevertheless, the GMC were effectively told to “get their act together” and that given the time they had already had, they should be capable of completing their enquiries within a 6 month period only.

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General Damages Award of £225,000 for Dyskinetic Cerebral Palsy
– A (suing by her Litigation Friend) v Powys Local Health Board

The Claimant, suffered dyskinetic cerebral palsy as a result of a birth injury for which the Defendant had admitted liability. She suffered from severe involuntary movements that hampered her ability to carry out activities of daily living. However her intelligence and intellectual development had not been affected by her injuries. Indeed she had a proven academic record and it was expected that she would attend university.

The JSB Guidelines (8th Edition) provide that the highest level of award for cases of quadriplegia range between £188,250 to £235,000 whilst the highest level of award for cases of severe brain damage range from between £165,000 to £235,000.

Although the Claimant’s injuries were severe, the court accepted that they were not so severe that, taken in isolation, they would warrant the largest award for either quadriplegia or severe brain damage.

Nevertheless, the court felt able to depart from the guidelines to take account of two additional factors. Firstly the Claimant had a life expectancy of around 70. This meant that she would experience a greater degree of suffering and loss of amenity than many others who suffered from cerebral palsy but who had shorter life expectancies. Secondly, her retained intellect meant that she had an insight into her condition that caused her distress and made it likely that she would suffer from depression while coming to terms with her condition. The court accordingly made an award of £225,000.

Comment

This case serves as a reminder that the JSB Guidelines are not an inflexible tariff. The Claimant’s long life expectancy and insight into her condition were factors that justified a larger than usual award. Taking this authority one step further, it could perhaps be relied on in converse situations to debunk the usual Claimant argument that causing severe damage such as to make life expectancy very short or rob the Claimant of any real insight will inflate the usual award too.

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