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Court finalises Thompstone periodical payment model order

12 December 2008

Sir Christopher Holland's order in the Thompstone and other cases last week concludes the final chapter in the long story of the indexation of periodical payment in personal injury cases, providing greater financial certainty for individuals in need of long-term future care.

“My primary focus has been upon the drafting of ‘Model Schedules’”, the judge said. “Once in play these have two functions: first, potential incorporation in the orders for approval in each of the five cases now before me; and second, potential incorporation in the orders that await approval in current and prospective cases.”

Earlier this year the Court of Appeal ruled that periodical payments should be indexed not on the retail price index (RPI) but on ASHE, the Annual Survey of Hours and Earnings, which offered a more accurate guide to the cost of care.

The case returned to the High Court before Mr Justice Swift, for a determination of a model order. Several difficulties arose, in particular in relation to the interest payable, and it was not until last week that a model order was finally issued by Sir Christopher Holland sitting as Deputy High Court Judge.

The model is not strictly binding on future cases, according John Pickering, head of personal injury at Irwin Mitchell, but “it is a very good starting point that should apply in most cases”.

“It’s been a very complex process”, says Pickering, who acted for one of the claimants in the series of cases. “Periodical payments are a very sensitive matter which requires looking many years into the future, so a draft order should meet the claimant’s expected needs and future contingencies.”

While the draft order addresses most key aspects, Pickering says several issues could come up which future orders will need to tackle, such as the possibility that ASHE may not always be used as a reference, or people defaulting.

There are approximately 100 personal injury cases pending, mostly at the top end, according to Pickering, where the determination of the correct index remained to be resolved.

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Procedures Expert witness Clinical negligence Road traffic