DDD -v- Chelsea and Westminster Hospital NHS Foundation Trust (anonymity order)
CLAIM NO: QB-2019-002284
In the High Court of Justice
Queen’s Bench Division
12 July 2021
Before:
His Honour Judge Simpkiss (sitting as a Judge of the High Court)
Between:
DDD ( A child proceeding by way of his father and litigation friend EEE)
-v-
Chelsea and Westminster Hospital NHS Foundation Trust
ORDER
BEFORE His Honour Judge Simpkiss sitting remotely as a judge of the High Court at the Royal Courts of Justice on 12 July 2021
UPON HEARING Henry Witcomb one of Her Majesty’s Counsel on behalf of the Claimant and Martin Porter one of Her Majesty’s Counsel on behalf of the Defendant
WHEREAS the Claimant has made a claim (the “Claim”) against the Defendant for personal injuries suffered by him arising out of the Defendant’s negligence between 13 and 17 September 2011 and in respect of which proceedings were commenced by the Claimant against the Defendant in the High Court of Justice, Queen’s Bench Division on 25 June 2019
AND WHEREAS the Claimant is a protected party and brings the claim by his Father and Litigation Friend EEE
AND UPON:
- Consideration of the Claimant’s Article 8 rights to respect for private and family life, and the Article 10 right to freedom of expression
- It appearing that non-disclosure of the identity of the Claimant is necessary in order to protect the interests of the Claimant
- The Defendant indicating its neutrality to the making of the order and there being no representations from the press or any other interested party
AND PURSUANT to section 11 of the Contempt of Court Act 1981; and CPR rules 5.4C, 5.4D and 39.2(4)
IT IS ORDERED THAT:
1. The identity of the Claimant in these proceedings is protected and shall not be published
2. Pursuant to CPR Rule 39.2(4), there shall not be disclosed in any report of these proceedings the name or address of the Claimant, or the Claimant’s parents, or any details that could lead to the identification of the Claimant. The Claimant and the Litigation Friend and his mother shall be referred to as set out at paragraph 3 of this Order
3. In any judgment or report of these proceedings, or other publication (by whatever medium) in relation thereto:
(1) The Claimant shall be referred to as “DDD”
(2) The Litigation Friend shall be referred to as “EEE”
(3) The Claimant’s mother shall be referred to as “FFF”
(4) Any other details liable to lead to the identification of the Claimant (including any names of other family members or addresses) shall be redacted before publication
4. Pursuant to CPR Rules 5.4C and 5.4D:
(1) A person who is not a party to the proceedings may obtain a copy of a statement of case, judgment or order from the Court records only if the statement of case, judgment or order has been anonymised in accordance with subparagraphs 3(1) to (3) above
(2) If a person who is not a party to the proceedings applies (pursuant to CPR r.5.4C(1B) or (2)) for permission to inspect or obtain a copy of any other document or communication, such application shall be on at least 7 days’ notice to the Claimant’s Solicitor or Deputy
5. The Court file shall be clearly marked with the words “An anonymity order was made in this case on [date of this Order] and any application by a non-party to inspect or obtain an copy document from this file must be dealt with in accordance with the terms of that Order.”
6. Any interested party, whether or not a party to the proceedings, may apply to the Court to vary or discharge this Order, providing that any such application is made on notice to the Claimant’s Solicitor or Deputy, and that 7 days’ prior notice of the intention to make such an application is given.
SETTLEMENT ORDER
BEFORE His Honour Judge Simpkiss sitting remotely as a judge of the High Court at the Royal Courts of Justice on 12 July 202
UPON HEARING Henry Witcomb one of Her Majesty’s Counsel on behalf of the Claimant and Martin Porter one of Her Majesty’s Counsel on behalf of the Defendant
WHEREAS the Claimant has made a claim (the “Claim”) against the Defendant for personal injuries suffered by him arising out of the Defendant’s negligence on 17 September 2011 and in respect of which proceedings were commenced by the Claimant against the Defendant in the High Court of Justice, Queen’s Bench Division on 25 June 2019
AND WHEREAS the Claimant is a protected party and brings the claim by his Father and Litigation Friend EEE
AND WHEREAS the National Health Service Litigation Authority (“NHS Litigation Authority”) shall be responsible for and make the payments set out in the Schedule to this Order and for the benefit of the Claimant (referred to below as “periodical payments”)
AND WHEREAS the NHS Litigation Authority has entered into an agreement with the Defendant which permits the NHS Litigation Authority to be responsible for and make the periodical payments under this Order
AND WHEREAS the NHS Litigation Authority is a Special Health Authority within the meaning of section 70 of the National Health Service Act 2006
AND WHEREAS the Defendant and the NHS Litigation Authority agree with the Claimant that in the event of any failure to make the periodical payments or any alteration in the method or change in the identity of the source of payment the same shall give rise to a direct right of the Claimant to enforce the Order and all rights arising under it against the NHS Litigation Authority in consideration of the Claimant agreeing to the terms of this Order
AND UPON READING the Advice from Counsel for the Claimant dated July 2021
AND UPON the Claimant and the Defendant having agreed in full and final settlement of the claim the terms set forth herein
AND UPON the Court being satisfied that
(1) The continuity of payment under the Order is reasonably secure pursuant to Section 2 (3) of the Damages Act 1996 and/or pursuant to Section 2 (4) (c) of the Damages Act 1996 and under the terms of the Order as herein set out
(2) The periodical payments are to be paid free of taxation under section 731 – 734 of the Income Tax (Trading and Other Income) Act 2005
(3) The Order set out below is agreed by the Claimant and the Defendant as being the preferred Order that should apply
(4) The form of the Order is that which best meets the Claimant’s needs and CPR 21 and 41 have been complied with
AND UPON the Claimant having given the following undertakings to the Court:
(1) A Deputy has been appointed for the Claimant
(2) The Claimant whether acting by his Litigation Friend or his Deputy will take all necessary steps to seek to stay the Claimant in any proceedings which have begun or have been threatened against the Defendant in connection with the Claim
(3) The Claimant, his Litigation Friend and/or his Deputy 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 £4,670,000 (Four million and six hundred and seventy thousand pounds) inclusive of interim payments of £800,000 (Eight hundred pounds) and CRU of £0.00 (Nil) 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 Claimant’s litigation friend and father to be paid £217,470 (Two hundred and seventeen thousand and four hundred and seventy pounds) by way of past gratuitous care and interest provided by himself and the Claimant’s mother, from the above sum of £4,670,000 (Four million and six hundred and seventy thousand pounds)
AND UPON the Court having approved the terms of this Order and the Schedule annexed to this Order
BY CONSENT:
(1) 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 10 August 2021 the Defendant shall pay (having taken into account any interim payments and/or CRU and/or interest to that date) the sum of £3,652,530 (Three million, six hundred and fifty two thousand and five hundred and thirty pounds pence) into the Account of the Claimant’s deputy (those details having already been provided) 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 shall be there to be dealt with as a fund of a protected beneficiary and as the Deputy in his/her discretion shall think fit
(b) The Defendant shall pay to the Department of Work and Pensions the CRU benefits amounting to £0.00 (Nil pounds and Nil pence)
(c) By the 10 August 2021 the Defendant shall pay to the Claimant’s solicitors free of any statutory charge the sum of £217,470 (Two hundred and seventeen thousand and four hundred and seventy pounds) which sum shall include interest thereon to 28 days after the date of this order in respect of damages to be held on trust for the Claimant’s father and mother in respect of gratuitous past care provided by them
(d) Further, the sums as specified in the attached Schedule be paid by the Defendant as stipulated in the Schedule and be funded in accordance with section 2 (4) (c) of the Damages Act 1996 with the sums payable to comprise damages for future care and case management such that the NHS Litigation Authority shall be responsible to the Claimant for and make such payments to the Claimant
(2) AND IT IS FURTHER ORDERED that the Defendant do pay the Claimant’s costs of this action on the standard basis such costs to be the subject of a Detailed Assessment if not agreed with the sum of £300,000 (Three hundred thousand pounds) to be paid by way of a further payment on account of costs by 10 August 2021
(3) AND IT IS FURTHER ORDERED that there be permission to have a detailed assessment of the Claimant’s costs in accordance with the Civil Legal Aid (Costs) 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
(4) 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 Litigation Authority, and if necessary to add the NHS Litigation Authority as a party to enforce the terms of this Order
(5) AND IT IS FURTHER ORDERED that there be permission to restore
SCHEDULE TO THE ORDER
Part 1 of the Schedule to the order
Each sum payable under part 2 of this schedule is a “periodical payment” subject to the conditions set out in paragraphs 1-8 of this part
- Unless specifically stated, all the periodical payments under part 2 of this schedule will continue during the lifetime of the Claimant
- No minimum number of periodical payments under part 2 of this schedule shall be made
- Payment of the periodical payments under part 2 of this schedule will cease on the death of the Claimant
- The final periodical payment under part 2 of this schedule will be pro-rated for so much of the final year that the Claimant had survived and any balance owing to the NHS LA or its successor will be repayable to it out of the Claimant’s estate, subject only to deduction by the Claimant’s estate of such sums as the Claimant’s estate may be liable for in respect of the termination of the employment of any persons employed to care for the Claimant
- The NHS LA shall be entitled to require the Claimant to produce evidence in a form reasonably satisfactory to the NHS LA that the Claimant remains alive before making any periodical payment
- The periodical payments under part 2 of this schedule are to be made by BACS to the Account of the Deputy (details of which have been provided) for the benefit of the Claimant under reference (DDD QB-2019-002284)
- Under part 2 of this schedule the NHS LA shall provide to the Claimant and/or the Deputy 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 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 annual sum was due to be increased or decreased or commenced under the relevant sub-paragraph of paragraph 1 of part 2
8.2 Any balancing payment due to the Claimant or the NHS LA shall be made within 28 days after the publication of all the relevant data by the ONS
8.3 The NHS LA shall pay interest at the then applicable Judgment Act rate on any outstanding periodical payment or part of a periodical payment not paid on the 15th of December in any year from the 16th of December in that year until full payment is made, except that in the circumstances contemplated in paragraphs 8.1-2 interest due on any balancing payment shall only be payable by the NHS LA from 28 days after publication of all the relevant data until full payment is made
9. For the period from 15 December 2021 to 14 December 2022 to represent the periodical payment under part 2 of this schedule for that period the Defendant do pay the sum of £300,000 (Three hundred thousand pounds) due as the balance of the periodical payment for the above period and that sum shall be paid by 4.00 pm on the 15 December 2021
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 £300,000 (Three hundred thousand pounds) payable on the 15th of December in each year from 15th December 2022 until the 14th of December 2030 inclusive, with the first such payment to be made on the 15th of December 2022.
1.2 The annual sum of £350,000 (Three Hundred and Fifty Thousand pounds) payable on the 15th of December in each year from the 15th of December 2030
The expiry of one period and the commencement of another period under the above sub-paragraphs constitutes a “step change” under this Schedule
2. The relevant earnings data are the gross hourly pay for “all” employees given by the present Standard Occupational Category [‘SOC’] for (Care assistants and home carers) [‘6115’] at the relevant percentile shown below (currently in table 26.5a at the tab for “all” employees) of the Annual Survey of Hours and Earnings in the United Kingdom [‘ASHE’] published by the ONS. The original relevant percentiles are:
2.1 80th percentile shall be applied to paragraphs 1.1 and 1.2 above
First payment of periodical payments under each step
- Unless paragraphs 5-10 below apply, the annual periodical payments referred to in paragraphs1 and 1.2 above shall be recalculated in November prior to payment on the 15th of December of the same year from November 2022 in accordance with the following formula
3.1 Where
3.1.1 ‘PP’ = the amount payable by way of periodical payment in each year being calculated in November and paid on the 15th of December the first ‘PP’ being the payment on the 15th of December 2022
3.1.2 ‘C’ = the relevant annual sum set out in paragraphs 1.1 and 1.2 above respectively
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 2022 published in or around October 2022
3.1.4 ‘A’ = the “revised” hourly gross wage rate for the relevant percentile of ASHE SOC 6115 for all employees applicable to 2021 and published by the ONS in or around October 2022. 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 paragraphs 1.1 and 1.2 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 2023 in accordance with the following formula
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 2022 and published in or around October 2023
4.1.2 ‘OP’ = 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 prior to the year in which the calculation is being carried out, the first OP being the figure applicable to the year 2022 published in or around October 2022
Payments upon reclassification of the SOC or a change of methodology by the ONS
5 Reclassification for the purposes of paragraphs 6-9 below, and subject to paragraph 6.1.2, occurs when the ONS publishes for the same year “revised” hourly gross wage rates for both:
5.1 the previously applied SOC (for which the “revised” wage rate is defined as ‘AF’ in paragraph 6.1.1 below) and
5.2 for a new SOC (for which the “revised” wage rate is defined as ‘AR’ in paragraph 7.1.4 below) that includes those currently defined as “home carers” in ASHE SOC 6115
Or alternatively, where the ONS publishes AR for a new SOC that includes those currently defined as “home carers” in the previously applied SOC but does not publish AF for the same year, then reclassification is nonetheless deemed to have occurred
Unless the Court otherwise orders pursuant to paragraph 11 below, in either event the new SOC shall be applied
6 The relevant annual sum referable to the sums at paragraphs 1.1 and 1.2 above following reclassification shall be known as ‘CR’ and shall be calculated only in each year of reclassification, in accordance with the following formula
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
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
Where reclassification has occurred on more than one occasion prior to the first payment then successive applications of paragraph 6 above must be carried out first to arrive at the present numerical value of CR and C shall represent the numerical value of CR previously calculated
7.1 Where in addition to the definitions previously set out
7.1.1 ‘PPR’ = the amount payable by way of periodical payment in each year following reclassification
7.1.2 ‘NPR’ = the “first release” hourly gross wage rate published for the relevant percentile of the new SOC following reclassification for the year in which the calculation is being carried out
7.1.3 ‘OPF’ = the final “first release” hourly gross wage rate published for the relevant percentile of the previously applied SOC for “all” employees
7.1.4 ‘AR’ = the “revised” hourly gross wage rate for the published percentile of the new SOC, which, when first published, is closest to AF, and the relevant percentile of the new SOC shall be the percentile to which AR corresponds
8 Until further reclassification the formula for calculating subsequent values of PPR shall be
8.1 Where in addition to the definitions previously set out
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.