The Dekagram: 14th September 2026

This week John Schmitt considers JBX v Frimley Health NHS Foundation Trust [2026] EWHC 2294 (KB), a recent High Court decision on a ‘lost years’ claim brought by a child, whilst Bethany Hutchison takes a look at a case on ADR and indemnity costs.

Quantifying Claims for Lost Years: the First Case Brought by a Child following the Decision in CCC

This is seemingly the first reported assessment of a child Claimant’s lost years claim following the Supreme Court’s decision in CCC v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5 (“CCC”) to allow such awards. Until the Supreme Court’s recent decision in CCC, it had been understood that the law did not recognise claims for the lost years by child claimants.

The Background

The background to this claim was the admitted negligence of the Trust in its mismanagement of a child’s asthma. After he had been negligently discharged by the Trust on 4^th January 2018, the Claimant’s condition deteriorated markedly. He stopped breathing and suffered a cardiac arrest and as a result a hypoxic brain injury. The consequences of such injury were catastrophic and he is now profoundly disabled.

Considerable evidential uncertainty arises when seeking to assess a lost years claim brought by an injured child because he cannot point to an established pre-injury earning capacity.

This case is a practical example of those difficulties: the Claimant was only eight years old when he sustained his catastrophic injury and, for obvious reasons, there was no evidence about his pre-injury thinking about his future career preferences or much meaningful evidence of his likely pre-injury earning capacity.

The Lost Years Claim

The Claimant was seeking damages for his loss of earnings and pension in the “lost years”, that is to say, the period between the date of his expected death (which had been agreed by the parties as now, sadly, only 25½ years of age because of his condition) and the date of his death had he not been injured (in other words, his normal life expectancy.)

The Claimant advanced a lost years claim on the assumption that:

• The Claimant’s annual income should be calculated on the basis that he would have followed in his father’s (here “ABX”) family’s footsteps and followed a successful career in sales in the city and eventually achieving the same salary as his father.
• The Claimant would retire at the age of 70 because the statutory retirement age was likely to have increased by 2079.
• The Claimant would spend 50% of his net income (from both earnings and pension) on living expenses.

His pre- and post-retirement losses were alleged to be £1,419,190.60 and £486,769 respectively.

As to the lost years, the Defendant raised two principal objections:

• First, it was appropriate to apply average figures rather than the Claimant’s father’s earnings which, in any event, were unsupported by the evidence.

• Secondly, it was not appropriate to apply a discount of only 50% to reflect living expenses. Relying upon comments by Lord Burrows and Lord Stephens in the decision in CCC, the Trust contended that the discount may be (a) high to reflect the degree of uncertainty involved and (b) rough and ready (but not arbitrary) and caution should be applied against using a simple or conventional discount. The Trust, therefore, argued that a discount of 90% was appropriate given that the Claimant’s future career is highly speculative and his likely higher living expenses in the south-east of England.

Andrew Kinnier KC (sitting as a Deputy Judge of the High Court) referenced the CCC judgment in detail in reaching his decisions.

Assessment of Child’s Lost Income

The first stage is the assessment of the Claimant’s likely income. Here, the practical question is whether the Claimant’s likely income should be assessed on the basis of his father’s income (to reflect ABX’s evidence that it is likely that he would have followed his father into sales) or on the basis of ASHE’s survey of average non-manual earnings.

The court was not satisfied that there was enough evidence to allow safely the assessment of the Claimant’s likely earnings on the basis of his father’s career in sales. ABX may have wanted the Claimant to continue the longstanding family tradition but his eldest son’s experience suggested that his wish would not necessarily be fulfilled. The reports from the Claimant’s first three years at school provided very limited assistance in considering his likely employment when he reached 18 and his earning capacity beyond the fact that he was meeting expected standards of development at the age of eight. In the circumstances, the Claimant’s likely loss should be assessed on the basis of the most recent ASHE data on net average salaries

Discounting Income for Personal Expenses

The second stage is calculation of the multiplicand and the controversial question of the discount to be applied to reflect the percentage of the Claimant’s income he would have spent on personal living expenses.

In deciding the appropriate discount, the court cited the following factors as relevant:

1. As the Court of Appeal found in Harris v. Empress Motors Limited [1984] 1 WLR 212, the sum to be deducted as living expenses is the proportion of the Claimant’s net earnings that he would spend to maintain himself at the standard of life appropriate to his case… In reality, the Claimant’s living expenses would have varied during his life: if he lived with his parents, his expenses would be small; if he lived alone in his own house, his expenses would be greater; if he married and had children, his personal living expenses would decrease.
2. It is not possible safely to calibrate the discount according to the various contingencies at different stages of the Claimant’s future life. Therefore, consistent with the general approach in adolescent and adult claims, a single discount should be applied to the entirety of this head of loss.
3. Because he was only eight years old when he sustained his catastrophic injury, there was no reliable evidence of his pre-injury earning capacity.
4. There was no reason to suppose that he would have been eternally single (to use O’Connor LJ’s phrase in Harris at 231).
5. There was also no reason to suppose that the Claimant would have moved far away from the south-east of England because his parents and elder brother have all remained in that region… The ONS data for Bracknell Forest (where his mother lives) indicated that the unemployment rate there is lower than the national average.

Having regard to the facts of this case and the factors identified above, the appropriate discount was 50 per cent. Even allowing for the novel nature of the exercise in child claims, the Trust’s proposed discount of 90 per cent was said to be out of kilter with the general range of discounts applied in recent years.

The Putative Retirement Age

The court held that, when considering a potential retirement age in the year 2079, the Claimant’s proposed retirement age of 70 was more realistic than the Trust’s alternative of 68.

Comment

The judgment seeks to rely on the guidance and rationale within CCC.

The court adopted the multiplier-multiplicand methodology as the starting point as opposed to more broad-brush techniques.

The Claimant’s attempt to contend for earnings above average earnings figures, on the basis of the Claimant’s potential trajectory of “following in his father’s footsteps”, failed for evidential reasons. This is, quite obviously, always a high evidential hurdle when attempting to construct a future career for someone injured right at the start of their life. Here, the court had merely the facts that the child was meeting expected levels at school and that the father’s eldest son had, in fact, not followed his father’s career path. The takeaway from this judgment is that evidence will need to be compiled with as rigorous detail and substantiation as possible in order to avoid simple reliance on average earnings.

There was no evidential basis for departing here from a conventional percentage of 50% deduction for living expenses in future life, notwithstanding the novel element of a child’s lost years claim. One can have some sympathy for the Trust’s position that the deduction should be much more significant than this, given that in CCC Lord Burrows said that, in calculating lost years awards, he would anticipate that, assuming a multiplier approach is applied, “there will be a high deduction from lost earnings for living expenses” [para 142] and that while, usually, the multiplier approach will be applied, based on the Ogden tables, again it will be with a “high” percentage deduction for the claimant’s living expenses [para. 150(ii)].

Having relied on the conventional 50% deduction, the judgment in JBX was also careful not to lay down any rule of thumb for child lost years cases, the judge stating, “Assessment should also guard against the reflexive use of a conventional figure. In short, the discount should be decided according to the facts of the case” [para 200].

This does not provide much clarity on this issue for practitioners except for a reminder of the evidence-driven nature of these issues and their resolution, and each case turning on its facts.

The judgment, as a sub-plot, also contains a useful insight for practitioners into judicial rationale for preferring one party’s expert over another’s. In particular, it provides a salutary reminder of the importance of making sure an expert addresses the “range of opinion” requirement of 35PD 3.2(6). In the field of neuropsychiatry, the judge held the Claimant’s expert did “not sufficiently consider the merits and, crucially, the risks posed by the various accommodation options under consideration”; in the field of care, the judge held the Claimant’s expert “fell into the trap of advocating one side’s position rather than providing the court with a full, fair and balanced assessment of the competing merits of the options for the Claimant’s future care and accommodation.” The Defendants’ experts were preferred as a result.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He has been described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

Bidco Limited & Anor v Christopher James Roberts & Anor – Costs for unsuccessful early neutral evaluation

Introduction

If you have ever faced the task of encouraging a reluctant client to engage in early neutral evaluation (“ENE”) this judgment is worth a read. In Bidco Limited v Roberts [2026] EWHC 2312 (Comm), HHJ Pearce grappled with a deceptively simple question: who should pay when a court-ordered ENE collapses, with the parties pointing fingers at one another as to why? His answer may be quietly reassuring for anyone who worries that engaging in ADR is a costs gamble. In the context of the courts’ ever-growing enthusiasm for ADR, the decision offers a welcome dose of pragmatism.

The facts

The underlying claim was straightforward: a professional trustee business sued a former employee and his new company for breaching restrictive covenants after he set up shop in the pensions market. At the case management conference, HHJ Halliwell transferred the matter to the Shorter Trials Scheme and ordered the parties to engage in ENE.

The ENE, conducted by HHJ Pearce in April 2026, was far from a success. There were various reasons why. Principally, the ENE took place before witness statements had been exchanged meaning each side’s case was not as clear as it might have been, and mid-hearing, the defendants’ counsel produced for the first time the unpleaded argument that the defendant was not even competing with the claimant, so no covenant could bite. The ENE was adjourned and never revived. The substantive trial later concluded with judgment for the claimant on part of the claim only, with nominal damages of £100; otherwise, the claim and counterclaim were dismissed.

The claimants sought their indemnity costs for the wasted ENE, pinning the blame squarely on the defendants’ late change of tack. The defendants argued for costs in the case.

Judgment

Exercising his discretion under CPR r44.2, HHJ Pearce gave a reasoned ruling, which may be a useful authority for any party facing a costs application relating to unsuccessful ADR. The judge held that, as a starting point, the costs of a failed ENE should generally be “in the case” absent compelling reasons otherwise. Routine adverse costs orders, he reasoned, would discourage parties from engaging in ADR at all. Further, while the court will not shy away from detailed analysis of complex issues, often (as was the case here) it cannot say whether the criticised conduct actually caused wasted costs. There are usually a variety of factors, and picking through the wreckage risks satellite litigation about the merits of the case which the court may not be in a position to resolve.

As those with interest in this blog will likely know, indemnity costs demand something outside the ordinary and reasonable conduct of proceedings (Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hamer Aspden & Johnston [2002] EWCA Civ 879). On the facts, HHJ Pearce refused to punish the defendants. He acknowledged that the defendants had produced a new line of argument at the ENE, which later required an application to amend their Defence. However, he observed that adverse costs orders on the basis of how prepared parties are, may risk incentivising parties to undertake ADR at a very early stage when they are not expected to be prepared, and disincentivising parties that are underprepared from coming to the ADR table later on when they might be reasonably be expected to be prepared. In this case, the claimants argued not only that the Defendants were unprepared, but that ENE should never have occurred at all because it was never likely to succeed. This, it seems, is not an argument that is going to fly when the ADR is court-ordered. The Claimant’s submission was described by the judge as “an implicit criticism of the Judge for making the order for ENE” and going behind the fact of it having been ordered in the first place.

The takeaway for litigators

The practical message is heartening and provides some comfort to those who may approach ADR with trepidation or scepticism as to how effective it will be. The default position remains costs in the case. What this authority does not provide, though, is a free-pass. HHJ Pearce himself observed that the analysis “might suggest that the court should never maker an adverse costs order for failed ENE, that would be to take matters too far since it would protect even those who attend EME [sic] without having any attention [sic] to engage in resolving the dispute”. However (judicial typos notwithstanding), it seems that for those who approach ADR in good faith, the court will be slow to hand out penalties by way of adverse costs orders where the process does not result in settlement.

About the Author

Bethany Hutchison was called in 2021. Prior to joining chambers she gained a broad range of experience working in the legal advisory teams in the Cabinet Office and the Ministry of Housing, Communities and Local Government, following successful completion of her pupillage with the Government Legal Department, advising on high profile commercial, immigration and contractual matters during that time. She is now developing a busy common law practice across the full range of chambers’ specialisms.