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ABC -v- University Hospitals of Leicester NHS Trust (anonymity order published under CPR 39.2(5)

Claim No: QB-2019-002367

In the High Court of Justice

Queen’s Bench Division

24 July 2019

Before:

HHJ Graham Wood QC

Between:

ABC (By her litigation friend XYZ)

-v-

University Hospitals of Leicester NHS Trust

 


ORDER

BEFORE HHJ Graham Wood QC sitting as a Judge of the High Court, in the High Court of Justice on 24th July 2019

UPON HEARING Catherine Ewins of Counsel on behalf of the Claimant and Sydney Chawatama on behalf of the Defendant

WHEREAS the Claimant has made a claim (the “Claim”) against the Defendant for damages for personal injuries suffered by her arising out of the Defendant’s negligence on or about the 10 June 2003

AND WHEREAS the Claimant is a Child and brings the Claim by her Mother and Litigation Friend

AND WHEREAS the parties have agreed provisional terms of settlement

AND WHEREAS the Claimant has commenced Part 8 proceedings against the Defendant in the High Court of Justice Queen’s Bench Division on 9th July 2019 for the purposes of obtaining Court approval of the proposed settlement

AND UPON the Claimant having given the following undertakings to the Court

1. The Claimant acting by her Litigation Friend will take all necessary steps to seek to stay the Claim and any proceedings which have begun or have been threatened against the Defendant in connection with the Claim

2. The Claimant, and her Litigation Friend will not institute any proceedings against the Defendant or any other party or person whomsoever in connection with the Claim save by way of enforcement of this Order

AND UPON the parties having agreed in full and final settlement of the claim that the Defendant shall pay to the Claimant the sum of £2,000,000 (Two million pounds only) inclusive of interim payments of £0 and CRU of £21,695.40 and interest to 28 days after the date of the Order approving the agreement, together with the periodical payments contained in the Schedule annexed to this Order

AND UPON the Court having approved the terms of this Order and the Schedule annexed to this Order

AND UPON consideration of the Claimant’s Article 8 right to respect for private and family life and the Article 10 right to freedom of expression

AND UPON IT APPEARING that non-disclosure of the identity of the Claimant and the Litigation Friend is necessary in order to protect the interests of the Claimant

AND PURSUANT to s.11 of the Contempt of Court Act 1981, s.6 of the Human Rights Act 1998 and CPR Rule 5.4C and 5.4D and CPR Rule 39.2

BY CONSENT

(1) IT IS ORDERED that the identity of neither the Claimant nor the Litigation Friend, be disclosed. Further:

(a) That in all statements of case and other documents filed or served in the proceedings medical practitioner appointed to report upon the Claimant for the purposes of the Order, where the same are for the purposes of the administration and payment of the periodical payment Order.

(b) That any non-party affected by this Order may apply on notice to all parties to have this Order set aside or varied.

(2) IT IS ORDERED that the Defendant shall make payments to or for the benefit of the Claimant as follows in full and final settlement of the claim

(a) By the 21st day of August 2019 the Defendant shall pay (having taken into account any interim payments and/or CRU and/or interest to that date) the sum of £1,711,888.05 (one million, seven hundred and eleven thousand, eight hundred and eighty eight pounds and five pence) to the Claimant’s solicitors, subject to a first charge pursuant to Section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or as subject to any transitional and saving provisions as applicable to Section 16(6) of the Legal Aid Act 1988 or Section 10(7) of the Access to Justice Act 1999, which sum is to be transferred into a personal injury trust for the benefit of the Claimant (the trustees of which shall be Richard Grosberg of the Claimant’s solicitors, the Litigation Friend, XYZ, and the Claimant’s father.)

For the avoidance of doubt, the Court directs pursuant to CPR 21 PD 9.7, that since the Claimant (DOB 21 901) is to be 18 in September 2019, the monies are not to be paid into Court but should be paid into a personal injury trust for the benefit of the Claimant (as above) on the proviso that there is to be at least one professional trustee until the Claimant is 18.

Regulations 2013 or as subject to any transitional and saving provisions as applicable with Regulation 107 of the Civil Legal Aid (General) Regulations 1989 as amended, Article 5 of the Access to Justice Act 1999 (Commencement No.3) Order 2000, Article 4 of the Community Legal Service (Funding) Order 2000 and the Civil Legal Aid (General) (Amendment) Regulations 2000 as amended, save that in the event that the Claimant’s solicitors waive any claim to any further costs beyond those referred to above, they have permission to dispense with any Legal Aid Assessment

(5) AND IT IS FURTHER ORDERED that all further proceedings in this action be stayed except for the purpose of implementing the terms of this Order and the terms set out in the attached Schedule, for which purpose there be permission to apply to the Claimant, the Defendant and to the NHS LA, and if necessary to add the NHS LA as a party to enforce the terms of this Order

(6) AND IT IS FURTHER ORDERED that there be permission to restore

6. The periodical payments under part 2 of this schedule are to be made by BACS to the the personal injury trust for the benefit of the Claimant under reference CW/176417.1 (where applicable)

7. Under part 2 of this schedule the NHS LA shall provide to the Claimant in writing:

7.1 At the time of each periodical payment an explanation of how it has been calculated;

7.2 If reclassification or a change of methodology occurs within the meaning of part 2 of this schedule then when a periodical payment is made or in the event of a deferred periodical payment as soon as practicable following such a reclassification or a change of methodology, the relevant calculation(s) under paragraph 6 and the numerical value of ‘AR’ as defined in paragraph 7.1.4 of that part applicable to any current and/or future periodical payment to be made under that part

8. The NHS LA shall pay the relevant annual sums set out in part 2 of this schedule on the 15th of December of each year, save that:

8.1 If the Office for National Statistics [‘ONS’] does not publish by the 17th of November in the relevant year all the relevant data and as a result the NHS LA is unable to perform the relevant calculations under part 2 to recalculate the periodical payment due to the Claimant before the 15th of December of the relevant year, the NHS LA shall on the 15th of December of the relevant year make the periodical payment: (a) in the same sum as that paid in the previous year; or (b) in the increased/decreased sum recalculated in accordance with the relevant data for the previous year where in the relevant year the

Part 2: The ASHE 6115-Linked Periodical Payments

  1. The following present value annual sums as recalculated in accordance with paragraphs 3-10 shall be paid in advance

1.1 The annual sum of £58,195 (fifty eight thousand, one hundred and ninety five pounds) payable on the 15th of December in each year from 15th December 2020 until the 15th of December 2030 inclusive, with the first such payment to be made on the 15th of December 2020.

1.2 The annual sum of £67,400 (sixty seven thousand and four hundred pounds) payable on the 15th of December in each year from 15th December 2031 until the 15th of December 2040 inclusive

1.3 The annual sum of £63,400 (sixty three thousand and four hundred pounds) payable on 15th December in each year from 15th December 2041 until 15th December 2062 inclusive.

1.4 The sum of £16,852 (sixteen thousand, eight hundred and fifty two pounds) payable on 15th December 2063.

The expiry of one period and the commencement of another period under the above sub-paragraphs constitutes a “step change” under this Schedule. Subject to paragraph 3 of Part One to the Schedule of the Order above, the final payment will be made on 15th December 2063.

3.1.3 ‘NP’= the “first release” hourly gross wage rate published by the ONS for the relevant percentile of ASHE SOC 6115 for “all’ employees for the year in which the calculation is being carried out, the first NP being the figure applicable to the year 2020 published in or around October 2020

3.1.4 ‘A’ = the “revised hourly gross wage rate for the relevant percentile of ASHE SOC 6115 for all employees applicable to 2019 and published by the ONS in or around October 2020. In the event of a correction by the ONS it will be the replacement “revised figure issued by the ONS

Subsequent payment of periodical payments under each step

4. Unless paragraphs 5-10 below apply, the annual periodical payments referred to in paragraph 1.1-1.4 above shall be recalculated annually in subsequent years in November in each year prior to payment on the 15th of December of the same year from November 2021 in accordance with the following formula

PP=CX NP+(NF-OP)/A

4.1 Where in addition to the definitions previously set out

4.1.1 ‘NF’ = the “revised hourly gross wage rate published by the ONS for the relevant percentile of ASHE SOC 6115 for “all” employees for the year prior to the year in which the calculation is being carried out, the first NF being that applicable to the year 2020 and published in or around October 2021.

CR=CxAF/A

6.1 Where in addition to the definitions previously set out

6.1.1 ‘AF’ = the final published “revised hourly gross wage rate for the relevant percentile of the previously applied SOC for “all” employees

6.1.2 If, for the year of reclassification, the ONS does not publish AF, then the “first release” hourly gross wage rate published for the relevant percentile of the previously applied SOC for “all” employees (which is defined as ‘OPF’ in paragraph 7.1.3 below) shall be applied in its place

6.1.3 If reclassification has previously occurred then C will be the numerical value of CR calculated when reclassification last occurred

7 When reclassification occurs the first payment only shall be

PPR=[ CRx NPR/AR +[CxAF – OPF/A]

The second bracket of the above formula shall not apply where at the time of reclassification, either (a) there has been no periodical payment made in the previous year or (b) where at that time a step change in the annual sum is due under paragraph 1 above and in those circumstances the first payment shall be calculated in accordance with the following formula

PPR=[CRx NPR/AR

8.1.1 ‘NFR’ = the “revised hourly gross wage rate published for the relevant percentile of the new SOC following reclassification for the year prior to the year in which the calculation is being carried out

8.1.2 ‘OPR’ = the “first release” hourly gross wage rate published for the relevant percentile in the new SOC following reclassification for the year prior to the year in which the calculation is being carried out

9. Further reclassifications shall be dealt with in the same way by the application of paragraphs 5-8 above

10 For the purposes of this part a change of methodology occurs when the ONS publishes two sets of data for the applied SOC. In that event, the same process as set out in paragraphs 6-9 above shall be undertaken. However, in these circumstances references

to

10.1 “reclassification shall be treated as being a reference to a change of methodology’,

10.2 ‘the new SOC” shall be treated as being a reference to the existing SOC using the new methodology’, and

10.3 ‘the previously applied SOC” shall be treated as being a reference to ‘the existing SOC using the old methodology’

Miscellaneous

11 In the event of a dispute between the parties arising out of the application of this part, there be liberty to apply.

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