The High Court’s recent decision in Sarah Stewart v Northern Health and Social Care Trust provides a timely illustration of the careful scrutiny the courts apply to applications for for substantial interim payments in clinical negligence litigation.

The Court’s task remains anchored in a conservative assessment of what is likely to be recovered at trial, and whether the specific sum sought represents a “reasonable proportion” of that figure.

 

Background to the Application

The plaintiff, Sarah Stewart, issued an application under Order 29 Rule 12 seeking an interim payment of £500,000. She had suffered a significant delay in the diagnosis of cauda equina syndrome, with the defendant Trust admitting breach of duty for failing to diagnose the condition when she presented at Antrim Area Hospital on 22 January 2018. Causation, however, remained live and contentious.

Although Master Bell ordered the defendant to make the payment, the Trust appealed. The appeal came before Simpson J.

The plaintiff relied on expert evidence, including a favourable joint minute between neurosurgical and orthopaedic experts, suggesting she would likely recover substantial damages, potentially well into seven figures.

The defendant disputed the extent to which the plaintiff’s long‑term outcome would have been different but for the delay and resisted any assumption that the plaintiff would ultimately recover damages of the magnitude claimed.

 

The Legal Framework: What Must the Court Be Satisfied Of?

Order 29 requires the court to consider:

1. Would the plaintiff obtain judgment for substantial damages if the matter went to trial?
2. If so, is it just to order an interim payment?
3. Is the amount sought a reasonable proportion of the likely award?

 

The Court’s Assessment: Substantial Damages Likely—but That Is Not Enough

Simpson J accepted:

• The plaintiff would obtain judgment for damages.
• Expert evidence indicated that many of her significant ongoing symptoms were attributable to the delay in surgery.
• Damages were therefore likely to be substantial.

However, the Court made clear that the question did not end there. Even where substantial damages are likely, the Court must still apply a conservative evaluation when deciding whether the amount sought—here, £500,000—represented a just and reasonable proportion of the likely award.

Simpson J noted that the Court had not had sight of quantum evidence from the Defendant and considered that, “with so many imponderables, I am in no position to make an informed evaluation of the likely final award at trial”.

The Court refused to speculate on the ultimate award in the absence of a fuller evidential picture. Even though it was “very possible” that the Plaintiff would recover more than £500,000, that was not the test. The key question was whether the court could say that £500,000 was a reasonable proportion of the likely damages.

Since the Court could not conclude that £500,000 was a reasonable proportion of likely damages, the appeal was allowed and dismissed the plaintiff’s application for an interim payment.

 

Why This Decision Matters: A Trend Under Close Watch

Applications for interim payments in high‑value clinical negligence claims have become increasingly common in recent years. Rising accommodation costs, spiralling care expenses, and the lengthy duration of litigation have encouraged plaintiffs to seek significant funds at an early stage.

This decision underscores several important themes:

1. Timing of applications is important.

The Court found it difficult to make a decision in the absence of quantum evidence from the defence.  If the application had been made after exchange of quantum reports, the plaintiff’s application may have been stronger.

2. The courts will maintain a conservative approach.

With a growing trend towards making applications for interim payments, the Court has emphasised that a conservative approach should be taken.

3. Causation remains a key battleground

In cauda equina litigation, causation is often the main, if not the only battleground.  The court’s conclusion on causation can make the difference between a case worth a few thousand pounds to a case worth several million pounds.  In the absence of an agreed position it is challenging for an interlocutory court to reach even a preliminary view on damages.

 

For legal guidance and advice regarding clinical negligence , please contact Alistair Wilson or any member of our Healthcare team.

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.