Interim Payment Claim for Surrogacy Costs Refused


Interim payments of damages can help meet an injured person’s ongoing needs, such as care costs, before their case is settled. When deciding whether to order such payments, however, the courts will consider whether the amount claimed is likely to be covered by the damages eventually awarded in a later trial. The High Court addressed that question when a woman made a claim for an interim payment towards the cost of an overseas surrogacy arrangement.

The woman had undergone a cervical smear test in February 2018. The results were misreported, resulting in a delay in detecting cervical cancer: a diagnosis was not made until the following year, when she was 28. Her treatment left her unable to conceive naturally or carry a pregnancy. The NHS trust responsible for the inaccurate test result accepted liability and made an interim damages payment of £75,000.

The woman then applied for a further interim payment of £400,000 towards the cost of a surrogacy arrangement in the USA. She argued that, taking into account her and her husband’s ages, there was a need to begin the surrogacy process before her personal injury claim was resolved at trial. Following her application, the NHS trust made a further interim payment of £150,000 but disputed the reasonableness of her seeking commercial surrogacy abroad. It argued that making the interim payment she sought would pre-judge that issue in any future trial.

The Court observed that the woman’s case was at an early stage and there were still significant areas of dispute. Further expert evidence might be obtained later, and the precise details of the planned surrogacy arrangement had not been identified. It was entirely understandable that the woman wanted to enter into a surrogacy arrangement as quickly as possible, and the Court noted that there was some force in her argument that it was reasonable to do so abroad. However, it could not have a high degree of confidence as to the view a future trial judge would take, which would determine the likely amount of damages awarded. Accordingly, it declined to make an order for the interim payment.

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