Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
Temple Garden Chambers is a leading common law set based in London and The Hague.
With excellence from top to bottom Chambers provides a first class service in a number of different fields.
20/01/2023
Six figure interim payment ordered in contested IP application.
Lionel Stride (instructed by Patrick Maguire and Amber Braybrooke of HCC Solicitors), representing a young claimant who developed Functional Neurological Disorder (FND) after a slipping accident, secured a six-figure interim payment in a contested application in the High Court before Master Davison. The case emphasises the need to ensure that any rebuttal medical evidence served by the opposing party for the purpose of such an application is properly scrutinised; and confirms that the Court is entitled to, and should, form a view as to whether an opinion expressed by an opposing expert is sufficiently persuasive to affect the conservative valuation of the claim.
Background
The claim, which is ongoing, was issued at an early stage to secure an interim payment after the Defendant refused to fund treatment under the rehabilitation code or advance sufficient funds to pay for a recommended intensive programme.
Prior to issue, the Claimant’s legal team worked hard to obtain comprehensive evidence from spinal (because she suffered an initial T12 spinal fracture), neurological (specialising in FND) and psychiatric experts. Their consensus was that, despite pre-existing vulnerability, the accident had been the trigger for the development of a highly disabling form of FND: she has been unable to work since injury; requires professional care (currently council-funded); and is living in unsuitable accommodation. To have any realistic prospect of even partial recovery, the neurological and psychiatric experts recommended an immediate specialist treatment package itself costing in the region of £70,000, NHS funding for which would likely take several years to secure.
Despite this evidence, even after the application had been made, the Defendant would only agree to advance a partial payment that would not cover the treatment on which the Claimant had embarked. Having had her examined four months prior to the hearing, the Defendant served a letter from its neuropsychiatrist, who opined that the onset of her condition (diagnosed as Somatic Symptom Disorder (SSD)) had merely been accelerated, such that she would have ended up in the same position in any event within 1-2 years. If correct, a conservative valuation of the claim would not justify payment of the interim sought. The application was defended on this basis.
Issues
To secure the required level of interim payment, it was therefore critical to demonstrate that the opinion of the Defendant’s neuropsychiatrist was unlikely to be accepted at trial on the evidence before the Court, such that the Claimant’s damages would not be limited in this way. The Claimant relied on authorities such as Smith v Bailey [2014] EWHC 2569 (QB); and Sellar-Elliott v Howling [2016] EWHC 443 (QB), which emphasised the need for the Court to weigh up the relative strength of each side’s medical evidence.
Judgment
Having heard full argument, Master Davison held the following on this issue [drawn from Counsel’s contemporaneous note of the judgment]: –
‘… Mr Stride fairly highlights that [on the evidence of the Defendant’s own neuropsychiatrist] SSD symptoms quote ‘generally reach their peak in the 30s to 40s’. Mr Stride says that Pr. Carson has failed to explain how the Claimant [who was only 26 at injury] could therefore have ended up precisely in the same condition already ‘but for’ the accident. That is a fair and strong point…
It seems to me very unlikely that a Court would find that this accident gave rise to no lasting effects and/or no permanent damage and/or that the Claimant’s FND is no worse post-accident than it would have been, or become, in the ordinary course of events. If that is correct, the figures in Eeles 1 [Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204] would be much higher than the Defendant has set out in their skeleton; and much nearer to Mr Stride’s conservative assessment. For that reason, I will order the [full] payment …. This is in my view a reasonable proportion of the likely amount of the final judgment.’
The Claimant therefore received the full sum sought and will now be able to complete the recommended treatment programme to maximise her prospects of recovery.
