B e f o r e :
SENIOR MASTER FONTAINE ____________________
____________________
Lionel Stride (instructed by Slater & Gordon LLP) for the Claimant Richard Whitehall KC (instructed by Horwich Farrelly) for the Defendants Hearing date: 22 September 2025 ____________________
HTML VERSION OF APPROVED JUDGMENT ____________________
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Master Fontaine:
This was the hearing of the Claimant's application for a further interim payment of £165,000 issued on 12th June 2025, subsequently reduced to £160,000 as the sum of £5000 was made following service of the application. The application is supported by the third, fourth and fifth witness statements of J Jeremy William Cornwell dated 9 June 2025, 27 August 2025 and 18 September 2025. The application is responded to by the witness statement of Jane Hall dated 11 September 2025. The Claimant also relies on the witness statement of Nicoletta Neagu dated 24 June 2025 and the witness statement of Rikki Clarke dated 17 June 2025.
Factual background
The background is taken from the Particulars of Claim and the evidence. The Claimant is a young man aged 26. He is an Albanian national, having been born and educated there. In July 2018 the Claimant left Albania and travelled to England via Germany and Holland. He arrived in England with the assistance of traffickers on 1 August 2019 and was forced to work for the traffickers until he escaped in September 2020 when he was able to live with his uncle who lived near London. Shortly before the accident he met and started living with a Romanian family comprising a husband and wife, their two young daughters and the husband's mother, and he continues to live with them in East London. He made a claim for asylum in March 2021 on the grounds of being a victim of modern slavery and in October 2022 was granted permission to work by the Home Office, but his immigration status precludes him from access to public funds and welfare benefits. His asylum claim was unsuccessful, and he is presently appealing that decision, where a decision is anticipated in about two months' time.
The claim arises out of a serious pedestrian accident on 14 January 2021 when the Claimant was crossing Romford Road, E12, at a traffic-light controlled pedestrian crossing, and was struck by the First Defendant's van as it travelled westward. The Claimant had been running from Romford Road north to south at the crossing when, on the agreed evidence, the First Defendant, travelling in excess of the speed limit, at around 41 mph in a 30mph zone, hit the Claimant, causing serious injury. His injuries included a moderate to severe (definite) Traumatic Brain Injury ('TBI'), cognitive impairments (including impaired processing speed; memory and attention deficits and executive functioning difficulties); minimally displaced left pterygoid, maxillary and mandibular fractures; facial lacerations (leading to permanent scarring and haematoma); headaches; ongoing and permanent fatigue related to the TBI; dizziness; tinnitus; temperature dysregulation; left arm weakness; jaw pain; and Psychological/psychiatric impacts including depression and a cluster of symptoms pertaining to PTSD (including irritability, hyperarousal, sleep disturbance and an inability to experience positive emotions).
Primary liability was admitted by the Defendants in its Defence dated 20 June 2024. Contributory negligence has been raised as an issue, and is listed for a separate trial, but judgment has been entered for the Claimant against the First Defendant by order dated 17 February 2025.
The claim is pleaded at £1,921,875.18. Interim payments totalling £13,500 have been made but the Defendant has not agreed to the request for further interim payments at this stage in proceedings. The Claimant seeks further payments in the light of his need for ongoing private treatment for his injury, permanent physical, cognitive and neuro psychological complaints, and the need to fund a trial of independent living ("TIL").
At the last CCMC in February 2025 permission was given for both parties to rely on evidence in the following disciplines: Neurology, Neuropsychology, Neuropsychiatry, Maxillo-facial surgery, Audio vestibular medicine, Ophthalmology and Endocrinology. Reports have not yet been exchanged, but the Claimant has disclosed available reports. A list of the expert evidence before the court for the application is at the Annex to this judgment.
The Law in respect of Interim Payment Applications
CPR 25.23(1) sets out the three conditions that an applicant must satisfy before an order for an interim payment can be made: (i) The defendant has admitted liability to pay damages;
(i) Judgment has been obtained for damages to be assessed; and
(ii) The court is satisfied that, if the claim went to trial, the claimant would obtain a substantial amount of money against the defendant.
There is no dispute that these conditions are satisfied in this case. Thus, the court must decide whether it is appropriate to award an interim payment, and if so, for what amount.
If the court decides that it is appropriate to award an interim payment, pursuant to CPR 25.20 (1) the Court must not order an interim payment of more than a " reasonable proportion of the likely amount of the final judgment ". The leading judgment on the Court's approach to determining what amounts to a reasonable proportion is the Court of Appeal decision in Eeles v Cobham Hire Services Ltd [2009] EWCA Civ 204 . An assessment should be made of the likely amount of the final judgment, leaving out of account the heads of future loss which the trial judge is likely to deal with by making a periodical payments order ("PPO"). Accordingly, the base assessment should comprise general damages including interest and special damages to trial including interest.
Whilst the assessment should be carried out on a conservative basis, a reasonable proportion of the capital sum may be a 'high proportion of that figure' because the objective is 'not to keep the claimant out of his money' but merely 'to avoid any risk of overpayment' : Eeles at [37] and [43]) (the 'first limb' of Eeles ); and the Court need have no regard to what the claimant will do with his money if he is of full age and capacity: Eeles at [44]).
CPR 25.20(2) provides that the court must take into account contributory negligence.
The Claimant's Grounds for an Interim Payment
It is the Claimant's position the likely value of his claim to trial, including general damages, past losses and interest, justifies a significant further interim payment even before account is taken of the costs relating to his neuro rehabilitation and TIL. The Claimant relies on his provisional Schedule of Loss, medico legal, care/case management and OT reports and correspondence and Mr Cornwell's witness statements. The Claimant's neurologist Dr Jenkins, who is a traumatic brain injury specialist, has prepared a report dated 30 November 2023 concluding that the Claimant has suffered a significant brain injury at the more severe end of the moderate to severe Mayo classification from which long term symptoms and impairment are expected. Doctor Jenkins' view is supported by Professor Ron, Emeritus Professor in neuropsychiatry in her report dated 1 March 2024. Professor Ron is of the view that the period of natural recovery of two years is now over and that the Claimant's cognitive deficits are now permanent. She is of the view that an improvement in his mental state may result in some, but at best, minor improvement in his cognitive functioning and fatigue.
Although it is now almost five years after the accident the Claimant's ability to live independently and return to some form of work as not yet been adequately tested as he has lived with friends and family having been heavily dependent upon them for personal and domestic activities of daily living since the accident. The Claimant's case manager Abigail Dry in her report dated 4 February 2025 recommends community-based neuro rehabilitation and a TIL. This is supported by the Claimant's expert Neuropsychologist Dr Brooks in his letter of 17 September 2025. Ms Gould, care and occupational therapy expert instructed on behalf of the Claimant, who has prepared a draft report, not yet served, has provided a letter dated 8 July 2025 in which she also supports a TIL for the Claimant as well as a specialist brain injury case manager. Dr Jenkins, reporting in November 2023, observed that the Claimant's ability to live independently has not been properly tested and he supports lifelong multidisciplinary neuro rehabilitation. Doctor Ferguson, the Claimant's treating neuropsychologist, has independently recommended the appointment of a brain injury case manager, vocational rehabilitation, trauma focused psychological intervention and psychoeducation, and consolidation of rehabilitation strategies.
Before the accident the Claimant was a fit and healthy young man, seeking to pursue a career as an electrician, and he has (subject to his asylum application) been deprived of a promising and fulfilling career in the UK. Although he has managed to attend college and attained a Level 2 Diploma in Electrical Installations after the accident, he has had to abandon his training for a Level 3 Diploma owing to his fatigue, and cognitive and physical difficulties. Having gained the right to work for 2 years from October 2022 and worked with the assistance of an accommodating employer until September 2023, he has a significant claim for lost earnings which he would have commanded in the two years up to the termination of his right to work in the UK in mid-December 2024.
The Claimant provides the following likely amounts of damages to support his application (which I have rounded up or down for ease of calculation):
(i) General damages for Pain Suffering and Loss of Amenity ("PSLA") £200,000, relying on the Judicial College ("JC") Guidelines 17 th edn. for moderate brain injury between £110,720 and £183,190, and additional awards for his other injuries including his psychiatric injury.
(ii) Inflationary increase since publication of JC Guidelines £15,000.
(iii) Interest on General Damages of £6.000;
(iv) Loss of Congenial Employment £15,000;
(v) Past Loss of earnings of £29,000 to December 2024;
(vi) Cost of Neurorehabilitation and associated support £64,000;
(vii) TIL £93,000.
(viii) Interest on special damages £2,600
(ix) Travel and miscellaneous expenses £500
Giving a total of £426,000.
Mr Cornwell says in his third statement at paragraph 56 that it is not yet possible to accurately quantify the Claimant's future care and case management needs. Although the parties do not have permission to adduce evidence from care and/or occupational therapy experts but that the Claimant will seek such permission at the next CMC, to be listed on the first available date after April 2025. He states that once that further evidence becomes available the claim is likely to have a value in excess of £1,000,000 on a full liability basis.
Mr Cornwell addresses the appropriate amount of deduction for the Claimant's alleged contributory negligence. This allegation is based on the fact that the Claimant as a pedestrian crossed a road at a traffic light-controlled pedestrian crossing without waiting for the lights to turn green in his favour and in the early morning when the natural light was dark, and it was raining, so the driver's visibility would have been impaired to some extent. Mr Cornwell in his third statement suggests that the possibility of a successful contributory negligence claim by the Defendant is likely to result in the reduction of the damages by a modest percentage. He suggests one third for the purpose of this application.
The Defendant's Claimant's Grounds for Opposing an Interim Payment
The Defendant's position is that as the court is required to find a conservative valuation of the claim for the purposes of this application, the interim payment sought, when added to the payments already made, far exceeds a reasonable proportion of the likely amount of the final judgment. The Defendant reaches this conclusion as follows.
With regard to damages for PSLA, the Defendant disputes that the Claimant's symptoms are as severe as stated. They consider that his brain injury is of moderate severity, referring to a letter dated 23 June 2025 sent by Dr van den Broek the Defendant's instructed neuropsychologist who has carried out neurological testing of the Claimant, and who had access to records produced by Dr Ferguson of Neurolink Psychology as well as GP and Hospital records. Dr van den Broek states that the Claimant failed performance validity testing on neuropsychological testing both with Dr van den Broek and with his own expert Dr Brooks. Dr van den Broek's view was that some of the Claimant's cognitive symptoms may be affected by many other factors, such as litigation stress, worry about the refusal of his asylum claim and lack of involvement with domestic chores with which occupational therapy could assist.
Ms Hall also notes in her witness statement that since the accident the Claimant has undertaken training as an electrician and worked full time for most of 2023 as an electrician's assistant, and that he was also engaged during this time with both this litigation and his asylum claim, none of which indicates someone with significant cognitive impairment and no prospect of future employment. Ms Hall refers to the letter from Teresa Stratford the Defendants' occupational therapy expert, dated 10 September 2025 which records that the Claimant's rehabilitation prescription on discharge from King's College Hospital did not record any significant cognitive impairments. In addition, Ms Kirchberg, Clinical Nurse Specialist in the Community Neurology Service, also noted that he did not have long-lasting cognitive issues, and that during her assessment he was able to respond appropriately and without hesitation, and concentrate appropriately. For these reasons Ms Hall submits that a conservative valuation of the claim should be at the lowest category of brain injury in the JC Guidelines (£52,550 - £110,720) and that a conservative estimate for PSLA would be £52,550.
The claim for loss of congenial employment is disputed in its entirety on the ground that the Claimant would not be able to demonstrate that he has suffered a loss of some aspect of his pre-accident employment that is congenial to him. He had never worked before the accident. He was able to pass his level 2 Diploma and work as an electrician's assistant after the accident, and he received permission from the Home Office to work for 2 years until October 2024, so would not been likely to have been able to work in the UK after that date if his asylum application appeal did not succeed. It is not certain that he would have passed his Level 3 Diploma had the accident not occurred.
With regard to the cost of neurorehabilitation and associated support and TIL Ms Hall refers to the letter from Teresa Stratford the Defendants' occupational therapy expert, dated 10 September 2025 commenting on the proposals of the Claimant's case manager Ms Abigail Dry. She disagrees with the extent of care suggested by Ms Dry, namely night time care (which Ms Stratford says the Claimant has not needed since he came out of hospital in 2021) and 8 hours of support a day (with which she also says is unnecessary, nor with the extent of cognitive help proposed. Ms Stratford says that vocational therapy is not needed as the Claimant has already chosen a career, which he expressed a wish to continue when assessed on 25 August 2025. She notes that he has access to the community as he goes out by himself and completes journeys on public transport. He attended New City College in Rainham for 2 years post accident and has travelled alone to Guildford to see a medical expert. He is trusted by the family with whom he lives to meet the young daughters of the family from school and escort them home. Ms Stratford also disagrees with the proposal for a TIL. She says that although this can be helpful for those who have not been able to manage by themselves with activities of daily living, this is not the case here. The Claimant was independent in personal care when he was discharged from hospital and takes responsibility for certain domestic tasks, such as cleaning his own room, does his laundry and gets his own drinks and snacks. He is able to structure his time and make arrangements for activities independently. He was able to attend college in 2022 and 2023 with an 87% attendance record (the shortfall in attendance due to catching Covid), and with 100% punctuality, having to catch a train and a bus each way. The Defendant submits that the need for any further treatment and/or TIL would be better assessed after the litigation has settled and his immigration position has been clarified, so that the Claimant would have no incentive towards any particular outcome.
Further the Defendant notes that if the Claimant's asylum appeal is refused he may not be in the UK for long enough for this to take place, and in any event the Claimant himself has not expressed any commitment to undergoing a TIL, and refers to Ms Dry's comment about his lack of engagement with the idea in her report dated 4 February 2025. Ms Hall also relies on Dr Van den Broek's view that the Claimant's treatment would be best undertaken post settlement of his claim " so addressing the issue of litigation stress and bearing in mind the evidence of suboptimal engagement and over-reporting. " The Defendant therefore does not agree that any damages are likely to be recovered for this head.
There is likewise no agreement to any past loss, or travel and miscellaneous expenses Thus the Defendant estimates damages on a full liability basis at £52,550. This figure excludes any interest or allowance for inflation.
With regard to the appropriate deduction for the Claimant's alleged contributory negligence, it is accepted that the Defendant's speed was excessive for the prevailing conditions, and it is submitted that the primary cause of the accident was the Claimant's decision to run across the road when the pedestrian lights were red against him. The Defendant submits that a deduction of two thirds is appropriate for this claim, with an alternative case of 50%. Thus, on the Defendant's primary case the likely amount of damages to be awarded would be £18,000, of which the sum of £13,500 in interim payments must be deducted, giving £4,500. It is accepted that if the Claimant's immigration status is resolved in the future, and the medical evidence demonstrates significant ongoing symptoms, he would have a better claim for a substantial interim payment in the future.
Discussion
There are two main difficulties with assessing "a reasonable proportion of the likely amount of the final judgment " in this case, namely (i) the fact that most of the expert evidence has not yet been exchanged and (ii) the Claimant's uncertain immigration statement.
The Claimant's expert Neurologist Dr Jenkins and his [treating] Neuropsychologist Dr Ferguson concur that the Claimant's brain injury is in the moderate to severe category, at the more severe end of the category. The Defendant has adduced no medical evidence to rebut that, despite, I am told, having had the Claimant assessed by a neurologist in November 2024 and a psychiatrist in March 2025. Further the Defendant has not provided any reason for not allowing any damages for the other injuries suffered by the Claimant. I accordingly consider that the Defendant's approach is not realistic as they have not provided any expert evidence to support it. I refer to the decisions in Smith v Bailey [2014] EWHC 2569 (QB) at [8] (Popplewell J); Sellar-Elliott v Howling [2016] EWHC 443 (QB) at [49] (Sweeney J).
For the purposes of this application I shall take a conservative approach to this injury and assume a median of the JC Guidelines range for the moderate category of brain injury at £147,000, which, allowing a further sum for his other injuries, leads me to the same figure included in the Provisional Schedule of Loss figure for PSLA of £200,000 , plus an inflationary increase since publication of the JC Guidelines at 3.85% for 2 years of £15,400.
I consider that there is a real risk of the claim for loss of congenial employment not succeeding for the reasons given by the Defendant so for the purposes of this application I will leave that figure out of the equation.
There is a claim for loss of earnings to an estimated trial date in mid December 2024, plus a further 6 months of loss. I consider that it is likely that the Claimant will have a claim for this head of loss given the medical evidence and the factual evidence of Rikki Clark. However the amount will depend to a considerable extent upon whether his appeal against the rejection of his asylum claim will succeed, or whether if it fails and he is deported to Albania. I note also that his permission to work appears to have ceased in October 2024. However I think it reasonable to assume at least 12 months loss of £29,201.16 as the Claimant was only able to work during the period January 2023 to September 2023, and I will allow that figure of £29,201.16 .
I agree with the Defendant that the estimate for future neuro rehabilitation and associated support is high, when considered against the medical and factual evidence, but I consider it is again unrealistic to assume that none will be required, when the available medical evidence is taken into account. However, as the requirement for the need or extent for some of the items is disputed in the Defendant's expert evidence, I will again take a conservative approach and allow the sum of £40,000 for the calculation.
I share the Defendant's concerns as to whether a claim for a TIL is likely to succeed at trial, having regard to the conflicting evidence on this issue. The reports of Dr van den Broek and Ms Stratford raise some real concerns about whether this expense is required. I also take account of the evidence of Ms Neagu, the wife of the couple with whom the Claimant lives, as to the extent of what the Claimant is able to manage in terms of self care, although I note that from her observations she thinks that a TIL would be a good idea, Nevertheless, in taking a conservative approach I will not include this head of damages in the calculation.
The travel and miscellaneous expenses of £450 seem reasonable and I will include in the calculation.
I have calculated interest on general damages at £5,744. Interest on special damages remains as calculated by the Claimant at £2,601.48.
I calculate that this totals £293,396,64.
With regards to any deduction for contributory negligence, I have been assisted by an expert collision analysis report commissioned by the Claimant from Dr Mark Crouch dated 26 August 2025. Dr Crouch concludes that if the First Defendant had not been speeding, the Claimant would have safely crossed without the need for any avoiding action. Equally he concludes that if the Claimant had obeyed the crossing signals the collision would have been avoided. I consider that Mr Cornwell's estimate of a one third deduction is more likely to be accurate than the Defendant's estimate of two thirds, simply because it is generally the case that a driver in charge of a potentially lethal vehicle bears more responsibility than a pedestrian. However, given Mr Crouch's conclusions I consider that a 50% deduction is entirely possible, and I will adopt that approach which gives a figure of £146,698.32 as the likely amount to be awarded at trial, on a conservative estimate.
With regard to what a reasonable proportion of that figure would be, I do not consider that a high proportion would be appropriate in this case, because of the uncertainties referred to. I consider that a sum of £73,000, approximately 50% of my estimate of a reasonable proportion of the likely amount to be awarded at trial, is an appropriate interim payment at this stage of the proceedings, taking into account the factors referred to above. Against this should be set off the sum of £13,500 already paid in interim payments. I will therefore allow an interim payment of £60,000.
ANNEX – LIST OF EXPERT EVIDENCE BEFORE THE COURT
For the Claimant: Report from Dr Jenkins, specialist in neurology and traumatic brain injury dated 30 November 2023; Report of Annette Sach Rehabilitation Occupational Therapist dated 2 April 2024; Letter from Emma Stebbings Physiotherapist 23 September 2024; Neuropsychological Assessment report of Dr Emma Ferguson dated 9 October 2024; Report of Abigail Dry, Care Manager dated 4 February 2025 Letter from Ms Vicky Gould Care/OT Therapist dated 8 July 2025;
Collision Analysis report of Dr Crouch dated 26 August 2025 Letter from Dr Brooks Neuropsychologist dated 17 September 2025;
For the Defendant:
Letter from Dr van den Broek Neuropsychologist dated 23 June 2025
Letter from Teresa Stratford Occupational Therapist dated 10 September 20