Interim Payments of Damages.

One of the features of clinical negligence cases is the almost unavoidable amount of time they take to resolve, very often measured in years, with one or two exceptions. Take a claimant with a clinical negligence case where liability is admitted but settlement is going to take some time. That might be because, for example, expert evidence is awaited and is many months away, or the claimant is too young for the financial value to be determined with reasonable certainty and the case needs to stay ‘on ice’ for a period of time to see how injuries develop.

How then to deal with the more immediate problems of money?

If you are unable to work either because of your own injuries or because of the care needs of a loved one, financial pressures can be very significant. Perhaps there are certain items of equipment, aids or therapies that may be helpful but which are particularly expensive and beyond financial reach at present, or perhaps adapted accommodation is needed urgently. The solution in appropriate cases is an interim payment of damages. A good lawyer should recognise when an interim payment of damages may be appropriate and advise you accordingly.

What is an interim payment of damages?

In short, it is an up-front payment of part of your damages whilst the case is still ongoing. It requires your lawyer to have a reasonable idea of the minimum financial value of the case, and for a collaborative approach to be taken by a defendant, particularly if the case has not been issued in Court. If you are in the position of Court proceedings having been issued and served, then an application can be made for the Court to order an interim payment if the defendant is not prepared to agree one.

How much can you get?

As you might expect, the answer is “it depends”. The precise ins and outs of an interim payment depend on the facts and circumstances of each case, so there is no ‘one size fits all’ method of approaching it. What we can say for sure based on the law around interim payments of damages is that the amount being requested does have to be a reasonable proportion of a conservative estimate of what you are likely to receive in damages if the case were to go to trial. So in practical terms, your lawyer should take the likely range of financial values (based on the available evidence), make a decision on what is a conservative estimate within that range, and then seek a reasonable proportion of that amount.

Are there any other considerations?

Well, yes! Your lawyer should be sign-posting you for advice about the effect an interim payment of damages might have on any means-tested benefits you get (or may get in future). Depending on the size of the interim payment being proposed, it may be appropriate to recommend that you get independent financial advice about investing it. If the case is one of catastrophic injury (for example brain injury, spinal cord injury or an amputation) then it will be important to consider whether it might affect the structure of the final damages payment at the end of the case, which can be a lump sum or a mixture of lump sum and annual payment for life (called a Periodical Payment Order or ‘PPO’). In a similar vein, if the injured party doesn’t have mental capacity to manage their own financial affairs then the Court may want a professional deputy to be appointed to manage the money.

It’s a complicated but important point, and it requires a good lawyer to steer you through it. That’s where we come in, for advice please contact our specialist team or email info@lblaw.co.uk.