According to the High Court “No not always” is the answer to this question! The High Court in LP (by her litigation friend) v Wye Valley NHS Trust  EWHC 3039 (QB) ordered the defendant NHS trust to make an interim payment to the claimant which took into account the costs of her purchasing and adapting new accommodation to better suit her disabilities which had resulted from strokes that the defendant accepted had been caused by its negligent failure to identify and treat her heart irregularity.
What are the practical implications of the judgment?
Following the decision in Swift v Carpenter  EWHC 2060 (QB), the award of the capital costs for accommodation, and so interim payment applications to obtain such damages, continue to be a vexed issue. Defendants, including the NHS Litigation Authority (NHSLA), continue to try and take advantage of the current uncertainty to dispute such claims despite the compromised appeal in JR (a protected party by his mother and litigation friend) v Sheffield Teaching Hospitals NHS Foundation Trust  EWHC 1245 (QB), The judgment by HHJ McKenna in LP, sitting in the High Court, provides a helpful counter-argument.
What was the background?
The claimant suffered a number of cardioembolic strokes caused by atrial fibrillation. Two particularly devastating strokes occurred in August and December 2013 leaving her with agreed significant physical, cognitive and behavioral deficits. The defendant had negligently failed to diagnose the underlying atrial fibrillation and treat it with an anti-coagulant. Had the claimant been treated with anti-coagulants, the 2013 strokes would have been prevented. Liability was agreed at 95% and the claimant sought an interim payment so that she could purchase an appropriate property. The defendant opposed that payment on a number of grounds and resisted any award for accommodation based on the current negative discount rate.
What did the court decide?
In rejecting the defendant’s arguments and making an interim payment for the vast majority of the sum sought by the claimant, HHJ McKenna made a number of useful observations which may assist claimants in similar applications:
Firstly, HHJ McKenna found that when calculating capitalised sums generally, a court should take the end point of the calculation not at the date of trial but at the date on which the periodical payments order (PPO) would be made. He accepted that it was standard practice to capitalise any future losses before the first PPO. An award calculated to the date of the first payment, almost invariably now 15 December of the year following trial or settlement in accordance with the standard order, would not fetter the court when making a PPO and so was not contrary to the principles set out by Smith LJ in Eeles (a child, by his mother and litigation friend) v Cobham Hire Services Limited  EWCA Civ 204,  All ER (D) 144 (Mar).
Secondly, HHJ McKenna followed the decision of HHJ Curran QC in Porter (by her mother and litigation friend Porter) v Barts Health NHS Trust  EWHC 3205 (QB),  All ER (D) 112 (Dec) and held that it would be wrong despite the judgments in JR and Swift to refuse to make an interim payment in respect of accommodation the claimant clearly needed. At the same time, he deplored the stance taken by the NHS of running an argument at a first-instance interim payment application which it had abandoned in the appeal in JR. As he observed at para  of the judgment:‘For my part I accept the force of leading counsel for the claimant’s submissions on this aspect and would adopt the reasoning of HHJ Curran QC in the Porter case. As it seems to me, the [NHSLA] having compromised the appeal in JR, it would be wrong in principle to allow it now to rely on the negative discount rate to deny the claimant any capital costs when such costs are plainly required to return her to the position she would have been but for the defendant’s admitted negligence.’
Thirdly, when awarding the sum due to the claimant for accommodation he was willing to adopt a rate of 1.3% to be applied to the capital costs to calculate the lump sum. This was the rate identified by the government actuarial department in its personal injury discount rate analysis document dated 19 July 2017 as the return which a prudent claimant would recover on an investment, after a reduction for inflation, on investments over a 30-year period. HHJ McKenna considered that this was an appropriately conservative approach, and thus suitable for an interim payment application. While the adoption of this rate is not ideal, particularly for a claimant with a short life expectancy, for many it will provide all, or a significant proportion, of the capital costs when applied to a multiplier calculated using a -0.75% discount rate.
This is not legal advice; it is intended to provide information of general interest about current legal issues.