When a claim is concluded by way of a Periodical Payment Order (PPO), where the form of settlement includes provision for an annual sum to be paid to the claimant by the compensator (often for the head of loss of care and case management), there is typically a need for ‘proof of life’ evidence, usually on an annual basis. This is because payments under the PPO will terminate upon the death of the claimant.
When PPOs are drafted at the conclusion of litigation, and often when the court is required to approve such orders, there can be debate as to what evidence should be sufficient for the purposes of establishing proof of life.
NHS Resolution (formerly the NHSLA) have typically utilised a standard form of PPO wording which was approved in the case of Thompstone v Tameside & Glossop Acute Services NHS Trust [2008] EWCA Civ 5 over 15 years ago. This states:
“The NHSLA shall be entitled to require the claimant to produce evidence in a form reasonably satisfactory to the NHSLA that the claimant remains alive before making any periodical payment.”
The current standard form does not identify what evidence or documents will be reasonably satisfactory.
In the recent decision of NKX v Barts Health NHS Trust [2023] EWHC 468 (KB), Mr Justice Ritchie declined to approve the wording of the proof of life clause as found in the model NHSLA PPO order. The lawyers for the claimant adopted a neutral stance and did not contend the clause should necessarily be changed. Mr Justice Ritchie accepted that the administration of PPOs under the usual proof of life clause must have been working reasonably well since the decision in Thompstone. Nevertheless he was concerned that in his duty to look after the interests of the incapacitous claimant, the clause should be objectively fair.
As a result he widened the proof of life clause, making it easier for the claimant to establish proof of life, specifically identifying what evidence would be sufficient.
The clause which was approved reads as follows:
“5.1 The NHSLA shall be entitled to require the claimant to produce to the NHSLA by 15 November each year reasonable evidence that the claimant remains alive.
5.2 Reasonable evidence may be contained in a letter or digital communication from the claimants’; - deputy, case manager, litigation friend, GP, other treating clinician or such other person as the NHSLA may consider appropriate”.
Mr Justice Ritchie revealed that he had given the defendant the opportunity to identify whether his proposed wording would affect the current system operated by NHS Resolution. The response was that there was no difficulty substantively or procedurally, but rather, that NHS Resolution did not wish their standard form of PPO to be changed, it having been fixed in Thompstone.
The judge observed that there was a justification and need for the PPO to specify objectively how the claimant could satisfy the need to provide proof of life, including when and how frequently requests for such evidence could be made by the compensator. He stated that, in the industry, proof of life clauses which did not relate to the NHS Resolution were drafted in a clearer and more balanced way to protect the interests of the claimant.
In cases settled by way of PPO the standard Thompstone Order does not objectively identify how and how often proof of life is to be established. This is unlikely to be satisfactory to the court.
Those drafting the order should ensure that there is clarity as to how the claimant will establish proof of life, identifying:
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