Interim Payments for Accommodation - DAC Beachcroft

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Interim Payments for Accommodation

Published 1 October 2015

In AS v (1) West Suffolk Hospital NHS Trust (2) NHS Blood & Transplant Service (2015) the Claimant was a young child who, whilst not physically disabled had substantial learning and behavioural difficulties for which he required a care regime. He suffered from severe microcephaly and development delay that would become more apparent as he got older. Otherwise he was an active child. Liability was not in dispute. £175,000 had been paid by way of voluntary interim payment.

An application was made for a further £700,000 to purchase larger accommodation to assist in the care regime. The Respondent argued that £500,000 was sufficient.

This type of application fell to be determined in accordance with CPR r.25.6 and r.25.7 and the two stage guidance provided by the Court of Appeal in Eeles v Cobham (2009). The starting point was therefore CPR Part 25.7(4) under which the court must not order an interim payment of more than a reasonable proportion of the likely amount of the final judgment”.

The judge awarded £650,000 following the principles laid down in stage one of Eeles:

  1. Consideration must be given to the likely amount of the final judgment ignoring future heads of loss that may be dealt with by way of a PPO which may compromise damages for PSLA, past losses and interest as well as capitalised accommodation costs; and that
  2. Such assessment should be a conservative one, taking account the risk of an overpayment.

Whilst the case was uncertain as by virtue of the Claimant's young age it was too early to reach any long term conclusions, nevertheless, applying the above principles, the judge concluded that it was unlikely that overall damages would be less than £900,000. 

However £700,000 would be too much assessing damages on a conservative basis, and £650,000 was a sufficient sum to enable the Claimant to obtain larger and better accommodation suitable to provide him with proper care.

Whilst the full judgment has not yet been published, it is clear that the Eeles principles remain paramount with the Courts continuing to award interim payments to fund accommodation costs even when the future is uncertain. When facing an application for an interim payment for accommodation the following should be borne in mind:

  • Consider the likelihood as to whether a periodical payments order is likely to be made – this is less likely if there are arguments as to contributory negligence or if the future is uncertain;
  • If Defendants wishes to argue that accommodation costs should not be dealt with under stage one of Eeles consider filing evidence in response and a detailed counter-schedule for use at the interim stage explaining the justification for their figures.


Duncan Rutter

Duncan Rutter


+44 (0)1962 705525

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