Periodical Payment Order refused in living mesothelioma case.
In a living mesothelioma case where the Claimant was seeking the costs of future immunotherapy by Periodical Payment Order, Master Thornett refused that claim in favour of adjourning the issue with interim payments as necessary.
Case: Geoffrey Howard v The Imperial London Hotels Limited
Jeremy Roussak instructed by Irwin Mitchell for the Claimant
William Vandyck instructed by Keoghs for the Defendant.
The Claimant suffered from mesothelioma. Judgment on liability had been entered and the claim progressed to an assessment of damages hearing. At the date of the hearing, all heads of damage were agreed save the future costs of treatment. The Claimant was undergoing a course of immunotherapy (Pembrolizumab) which the Defendant had agreed to fund. The Claimant sought a Periodical Payment Order for the funding of future immunotherapy as recommended by his treating oncologist. The Defendant resisted, arguing in favour of the matter being adjourned, with interim payments as required. Master Thornett held that the claim for a PPO failed and adjourned the matter. The Master considered that drawing on interim payments to fund immunotherapy was a more flexible and appropriate tool than a PPO. He took into account the considerable procedural flexibility and efficiency afforded to parties bringing and defending claims in the Asbestos List as would immediately apply to any interim payment application. He considered that the available procedure there surpassed by a very wide margin the mechanisms for review, variation and return to court permissible in a PPO. Costs of the approach of adjourning with interims would not obviously be higher. That approach was preferable in relation to the flexibility offered over a change in treatment. And the court rejected the submissions that interim payments were inappropriate because of the risk of overpayment, given that the Claimant could offer the facility of repayment of unused interim payments, in exchange for the Defendant agreeing to put the Claimant comfortably in funds for the proposed treatment.
Link to the judgment, can be found here.