Court of Appeal refuses permission to appeal Swift v Carpenter


Swift: Award now tops the sum originally at stake

The Court of Appeal has refused permission to appeal Swift v Carpenter, its recent decision that replaced the Roberts v Johnstone formula for calculating accommodation claims by injured people.

The court did not give any reasons, and James Arney of Temple Garden Chambers, the claimant’s junior counsel, said he understood the defendant was considering renewing its application to the Supreme Court.

The court also dealt with costs, ordering the defendant/respondent to pay Mrs Swift’s costs of the appeal on the standard basis up until July 2019, when she made a part 36 offer that she subsequently beat, and so indemnity costs thereafter, as well as an extra £65,000 in damages.

It rejected the defendant’s arguments that the 2019 adjournment, granted to enable expert evidence to be adduced, meant it should take a different approach.

The court said the claimant had distinguished her case from that of Cheeseman v Bowaters in 1971, where a late amendment to pleadings to add a new claim had resulted in a claimant not recovering all costs despite beating the defendant’s offer.

The defendant had more luck in arguing for a lower rate of interest on damages than that sought by the appellant.

The court said: “This was an unusual case. There was a legal challenge, and the process by which the eventual form of the appeal was reached was also unusual. There was a long period between the relevant part 36 offer from the appellant and the judgment, and we accept that the strain on the appellant must have been considerable.

“However, we note that the appellant was in fact able to purchase a house. We do not consider that the respondent took ‘entirely bad points’. In our view there is no call for the rate of interest ‘to be greater than purely compensatory’ so as to foster settlement, given the facts in this case. Therefore, we accept the respondent’s submission that the appropriate rate of interest is 4.5% on the additional damages.”

This amounted to an extra £43,000.

He also sought a lower rate of interest on costs, arguing that – since Leigh Day and counsel were representing the claimant under a conditional fee agreement – she has not had to discharge their costs.

In reply, Mrs Swift submitted that there was an inequality of arms and pointed to offers made in February 2020, “which it is said may have been designed to split the appellant from her legal team”. She argued that the financial risks she and her lawyers had taken merited compensation at the maximum rate available.

The ruling said: “In our view there is some validity in the arguments advanced by both sides. There was a very long period after the part 36 offer, and some of the respondent’s tactics may be thought to have been somewhat aggressive.

“However, the respondent’s own offers made it clear that they considered they faced a considerable litigation risk. In our view it would be appropriate here also to award interest at 4.5%.”

The court ordered an interim costs payment of £500,000.

Mr Arney, who was led by Derek Sweeting QC, pointed out that when account was taken of the additional damages, interest on damages and the appeal award of £801,913, Mrs Swift’s total damages figures exceeds the £900,000 full capital value that was in issue between the parties on the appeal.

Mr Carpenter was represented by William Audland QC and Richard Viney, instructed by Weightmans, and the intervenor, the Personal Injuries Bar Association, by Darryl Allen QC and Richard Whitehall, instructed by Simpson Millar.




Leave a Comment

By clicking Submit you consent to Legal Futures storing your personal data and confirm you have read our Privacy Policy and section 5 of our Terms & Conditions which deals with user-generated content. All comments will be moderated before posting.

Required fields are marked *
Email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Blog

23 November 2020

Technicalities and realities – the battle over clin neg ATE premiums

A paying party in a clinical negligence case is seeking to argue that a Tomlin order is not a relevant “order for costs” and therefore the ATE premium is not payable. This should be given short shrift.

Read More