Legal Update
AXS v South Tees Hospitals NHS Trust – Interim Payment of £1.8 million awarded to brain damaged claimant
1 August 2023

AXS v South Tees Hospitals NHS Trust – Interim Payment of £1.8 million awarded to brain damaged claimant

Author: Howard Elgot

Howard Elgot acted for the Claimant in AXS v South Tees Hospitals NHS Trust before Master Cook on 31st July 2023. An anonymity order was made.

Howard was instructed by David Bradshaw of Hay and Kilner Solicitors.

The case is noteworthy for value of the interim payment and for the short period of time from the first admission of liability to the successful resolution of a substantial contested interim payment application. AXS was admitted to the James Cook University Hospital, Middlesbrough, on 24th November 2021.

During the course of an operation that day AXS suffered a severe anaphylactic reaction. Notwithstanding an early differential diagnosis of anaphylaxis by the Defendant’s doctors, the doctors failed to start and continue CPR, failed to administer glucagon, and failed to administer vasopressin. As a result, AXS suffered a serious hypoxic-ischaemic brain injury, leaving AXS with permanent brain damage and a requirement for 24 hour waking care.

Breach of duty and causation were hotly contested until after service of the Particulars of Claim, but the Defendant consented to judgment, which was entered on 14th March 2023.

An application for an interim payment to fund a family house and a substantial care and rehabilitation regime was made on 28th March 2023, and the solicitors, having laid the groundwork earlier, and following conferences with counsel, were able to obtain and serve up to date reports from a rehabilitation consultant, an accommodation expert and a nursing expert exactly 4 weeks before the return date of the hearing.

The Trust offered £750,000 in addition to an £150,000 interim payment already made. This offer was refused, and Master Cook awarded an interim payment of £1.8 million payable in 21 days, to bring the total interim payments up to £1.95 million.

Master Cook held that the value of the interim payment sought was too high to allow him to make the award under stage 1 of the well-known Eeles criteria, but held that having regard to stage 2 of the Eeles criteria there was a real need for non-care home accommodation immediately and certainly before any quantum trial might take place.

He considered that that part of the amount of interim payment requested for the property acquisition was reasonable. In line with Eeles itself, the Master noted that the court did not have to decide whether any particular property would be a reasonable purchase. The award would allow the Deputy to have adequate funds immediately available if and when the ideal property became available.

The full claim is pleaded as being in excess of £10 million pounds and therefore falls outside the costs budgeting provisions of the CPR.