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Interim payment applications in cases where causation is substantially in dispute

Client Alerts18/04/2019

Farrington v Menzies-Hains [2019], High Court, 7th March 2019

Stuart Giddings, a Partner in Keoghs’ Complex Injury & Catastrophic Loss team, has successfully argued against a request for a significant further interim payment to the claimant.

What was the decision?

The court dismissed the claimant’s application for a further interim payment of £450,000, in addition to £260,000 already received.

What were the facts? 

In January 2016 the defendant pulled out of a side road into the path of the claimant who was riding a motorcycle. Primary liability was admitted but allegations of contributory negligence remained. The defendant argued that, had the claimant been travelling within the 40mph speed limit, the collision could have been avoided.

The claimant suffered from a number of injuries including a mild to moderate brain injury, stable fractures of T8 and T9, soft tissue injuries to his neck, and fractures of his left ankle.  Orthopaedically he continued to suffer with significant pain but the consequences of the alleged brain injury were the main cause of concern for the claimant’s team.

The factual developments since the accident were unusual. The claimant suffered a mild to moderate head injury evident on CT scanning. He was discharged from hospital on the day after the accident. A fracture to the ankle was subsequently discovered. The claimant returned to work as a forklift truck driver within about six weeks of the accident and worked there for a further five months before obtaining alternative work as a night time security guard on a construction site. He was able to maintain this work for a further year before he allegedly fell out with his manager. He had therefore worked for a period of almost 18 months within the first two years after the accident, when the consequences of any brain injury could be expected to be at their worst. He contended that he had suffered from the consequences of his brain injury throughout this period and his work record obscured the reality of his situation. He produced witness statements from family members, a work colleague and a friend confirming this. However on undergoing further MRI scanning post-accident the claimant’s neuro-radiologist had confirmed the cranial MRI was normal. 

Towards the end of 2017 the claimant had a breakdown which his case manager said required the implementation of a 24-hour support worker regime and intensive rehabilitation package.

The defendant objected to the case management and support worker recommendations from the outset saying that causation for the claimant’s injuries was far from clear and such a support package was excessive and would only foster dependence.

The claimant made an interim payment application for an award in the sum of £450,000.  He had previously received £260,000 by way of interim payments as well as having the first phase of his rehabilitation funded under the Rehabilitation Code.  The rationale for this was he continued to require a 24-hour support worker package (albeit that would slowly reduce over time) and case management, costed at nearly £40,000 per month.  The conservative estimate on past losses and PSLA was in excess of £645,000 with future losses (limited to care/case management and deputyship costs) pleaded in excess of £4million. 

At a multi-disciplinary meeting the defendant vocalised concerns raised in three letters about the premature implementation of the regime. The potential issue regarding causation of these issues was also clearly signposted in the correspondence. The defendant withdrew from Rehabilitation Code and refused any further voluntary interim payments from late Spring 2018.

According to the claimant’s Psychiatric expert the cause of the claimant’s deterioration was dysexecutive syndrome arising from frontal lobe damage. The defendant’s expert evidence disclosed in January 2019 raised issues regarding the claimant’s credibility, his significant pre-accident history and the fact that the deterioration could be caused by an adverse life event unrelated to the accident and/or excessive cannabis use.

Disclosure of further records by the treating team in 2018 gave rise to further concerns about the standard of the care and treatment the claimant was receiving.  The defendant’s experts’ comments and views on this issue were obtained and disclosed and a clear indication was given to the claimant’s solicitors that the defendant intended to challenge the claims for past care and case management costs in line with the decision in Loughlin v Singh [2013] EWHC 1641 (QB).

What happened at the hearing?

The claimant asked the court to prefer the claimant’s lay and expert witness evidence at the interlocutory stage and find that the interim payment sought (taking total payments made to £710,000) would not be more than a reasonable proportion of the likely amount of the final judgment in line with the principles set out in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204.

By the time the claimant’s second interim payment application was heard in March 2019, the defendant had disclosed cogent expert evidence challenging the claimant’s case on causation. The defendant argued that the claimant had largely recovered from any brain injury and that symptoms were mostly non-organic and psychological/psychiatric in nature. 

There was little or no evidence to support the claimant’s assertion that he has suffered from decrement in his cognitive performance and indeed he failed effort testing on examination with the claimant’s and defendant’s experts.  He also failed a test of validity of symptom reporting.  If the causation arguments prevailed at trial the case may be worth around £90,000, such that there was already a risk that overpayment had been made to the claimant and that it would not be possible to recover such sums subsequently.

What was the outcome?

The application for a further interim payment was dismissed. The Judge held that it was inappropriate to engage in a mini-trial of causation at the interlocutory stage, CPR 25.7 was not intended to cover the situation in personal injury claims where significant issues of causation were at large and there was a real risk of overpayment if the application were acceded to. In any event, that stated the position too highly because the test as set out in Eeles was any risk of overpayment.

What does this mean?

The effect of the ruling is that a 24 hour care and associated therapeutic regime will have to be dismantled and is unlikely to be implemented again before trial in the summer of 2020. This radically alters the complexion of the case as it proceeds to trial.

The claimant argued that this would result in him presenting a risk to himself and others on account of his psychiatric problems. The Court was alive to this risk but the Judge appeared to gain some comfort from the fact that the defendant had clearly set out in correspondence what its position was, both in relation to causation and the propriety of the regime implemented, at the earliest opportunity and so the claimant could not in any way claim that it had been taken by surprise by the defendant’s stance.

Where are we now?

It is clear from this decision that:

1.  Likely disputes about care regimes being implemented in detail should be signposted at the earliest opportunity.

2. If causation will be disputed at trial, comprehensive and cogent expert evidence must be disclosed at the interim payment application to support this contention; a mere assertion that causation will be disputed will not be sufficient.

3. Careful consideration should be given to the timing of Part 36 offers in cases in which there are likely to be applications for significant interim payments.

 For more information, please contact Stuart Giddings