1. What happens if an injured child’s parents are separated and he spends time with each of them? What if both parents live in unsuitable properties? Is he entitled to damages to fund the purchase and adaptation of two homes? Can he do so with an interim payment? These were the issues in a contested hearing before Master Stevens, judgment 20 July 2026.
2. The claimant is nearly 8. He suffered a hypoxic ischaemic brain injury at birth as a result of the defendant’s admitted negligence. He has learning and behavioural difficulties and some motor impairment and although very mobile is agreed to require either single floor accommodation or at least to have his bedroom and bathroom downstairs. He spends time with both parents, roughly 60/40 between mother and father. The extent of his impairment is such that the claim will have to be stayed for at least another two years until he is 10 before his prognosis and care needs become clearer. A trial would not be until he is about 12 at the earliest. It is possible that a longer stay will be required. Both parties agreed that his current accommodation both with mother and father is unsuitable.
3. The defendant was prepared to concede a significant interim payment to fund the purchase of a forever home where the claimant could live with his mother. If alternative accommodation was required so that the claimant could continue to spend time with his father than the defendant argued that this should be rented rather than purchased.
4. The claimant’s position was that where a trial will not be for at least four years and may not in fact take place until he is 16 or older – because of uncertainty over whether behavioural issues will give rise to a need for doubled up care – it makes more sense to purchase two homes now and then sell one of them at the end of childhood than to purchase only one and rent another. If a second home is to be purchased and used during the claimant’s childhood it makes much more sense to purchase that property now than to wait four or more years and rent in the meantime.
5. The application for a further interim payment of £2.9m in addition to just over £300,000 already received was made on the basis that the further sum would be within Eeles 1 and if not then the need to purchase two properties justified an award under Eeles 2.
6. In a careful judgment, Master Stevens acknowledged that there was an increasing need to consider housing for injured children living between two families but that the court had not yet been asked to rule on the appropriateness of purchasing two properties. She held that it was not appropriate to determine this issue at an interim payment application stage:
“The Court is making no finding about any particular property being suitable at this interim stage, but simply that it is perfectly reasonable for one property to be purchased at this time. It appears there will be an argument at trial about the need to purchase a second property for the other parent (which could be sold when the claimant attains majority) . The Court does find that the father’s current rental accommodation is unsuited to the claimant’s needs as it is too cramped for therapy to take place to the extent it is now needed, and it is also inappropriate for the claimant to continue to share a small room with his younger sister. The current property impedes some of the care the father would wish to provide. Such blended care family arrangements in clinical negligence claims are still novel for the Court, although practitioners are handling a fair number in the pre-trial phase. There will be a number of difficulties for the Court in assessing second accommodation awards such as the relevance or adaptability of the Swift v Carpenter discount. The Court cannot adequately resolve those on an interim payment application.”
7. The Master resolved the application by allowing the claimant’s application for the full £2.9m sought. For the purposes of the Eeles 1 calculation she adopted a conservative approach of:
a. Assuming the need for two properties but only one purchased and the other rented;
b. Distinguishing between losses to date and likely losses between now and the trial.
8. In calculating the Eeles 1 pot on the assumption of one purchase and one rental the Master was clear that she was not saying that there should not be two purchases, only that the Eeles calculation itself would be performed on a more conventional/ conservative assumption i.e. one purchase and one rental.
9. The Eeles 1 pot was £3.73m if losses between now and trial were included and £3.25m if they were not. On either basis there was sufficient room to allow the full interim requested.
10. By assuming for the purposes of the application that the second property would be rented rather than purchased the Master avoided having to decide the difficult issue of how to quantify damages for a second property which it was anticipated would be sold at the end of childhood.
11. In considering the size of the accommodation damages she took a cautious approach, reducing the amount allowed to reflect 50% ‘but for’ costs (not determining that this would happen at trial but to avoid prejudging the issue of what credit should be given for in any event costs). Although the claimant had argued that the size of the accommodation claim should include rental costs to 19 the Master allowed these only to age 14.
12. So what can practitioners, whether claimant or defendant, take from this decision? The acknowledgment that two suitable properties were required is helpful. Further, the very fact that the application was granted means that in practice the Court has opened the door a little more to the argument in principle that it might be reasonable to purchase two properties even though the Master was careful to say that this would be an issue for trial.
13. The decision leaves open the question of how to calculate the Eeles 1 pot – what goes into the assessment for accommodation and should predicted losses for ‘anticipated’ losses between the date of the application and trial be included?
14. The reason for the application was that the claimant wants (and needs) to keep living with both parents. All the reasons why renting is not a good medium or long term solution apply equally to both parents. Given the real possibility of a lengthy delay between now and trial there would be a real concern about ‘throwing money away’ with a rental for a second property and the purchase of a second home is likely to be at best cost neutral and quite possibly cheaper. The problem with waiting to raise these issues at trial are: first, the likelihood of an actual trial is small given that most quantum cases settle and second, if the issue is delayed until trial the period of need, which is now, will have shortened considerably.
15. It will be interesting to see what happens with other cases on this issue. Interim payment applications tend to be agreed but it is easy to see why the defendant in this case thought that it was worth resisting. In the end the Court took an entirely pragmatic approach which leaves many of the underlying issues unresolved but this still looks like an incremental step which will be benefit claimants. Watch this space.
JOHN DE BONO KC [1]
21 July 2026
[1] John de Bono KC was instructed by Paul Rumley of RWK Goodman for the claimant.