Defendant lawyers in the landmark Swift v Carpenter accommodation costs case have confirmed they are challenging last week’s ruling.
The Court of Appeal established that seriously injured claimant Charlotte Swift should receive around £800,000 compensation to purchase suitable accommodation on top of her £4.1m damages.
Judges said the 1989 Court of Appeal ruling in Roberts v Johnstone – effectively used as a legal principle ever since about how damages were calculated – could be used as guidance only, and in future the court should take into account the changed circumstances since. It had previously been assumed that a claimant would pay for additional accommodation out of their own capital and that the capital input was risk-free and protected against inflation.
It was confirmed today by the defendant firm Weightmans, who acted for Carpenter in the case, that permission has been sought from the Court of Appeal to take the case to the Supreme Court. Lawyers for the claimant and for the Personal Injuries Bar Association, which intervened in Swift, will have until next week to file their submissions, with the court likely to make a decision at the end of this month.
While claimant lawyers have applauded the Court of Appeal decision, those working on the opposite side have expressed disappointment.
Philip D’Netto, a partner at Plexus Law and member of the Forum of Insurance Lawyers, said: ‘We feel that it over-compensates claimants in many ways. The decision fails to take into consideration the appreciation of property value. The court have arrived at a formula that appears simple but does not reflect the true loss to the claimant.’
Speaking during a webinar today, Weightmans partner Dave Cottam said the ruling – notwithstanding any appeal – was ‘here to stay’ and it would require a significant change in circumstances to revisit it. He predicted that awards will increase in the vast majority of cases and that lawyers and insurers should review current schedules and offers in other cases.
Richard Viney, junior counsel for Carpenter from 12 King’s Bench Walk, added that the Court of Appeal leaves two unresolved issues: no provision for mortality rates and no consideration for claimants in other circumstances, for examples those expected to rent for the rest of their life.
Although they ruled that Roberts does not provide fair compensation under current circumstances, Lord Justice Underhill and Lord Justice Irwin did acknowledge this was not a straightforward issue.
Irwin LJ said in his ruling that guidance should ‘not be regarded as a straitjacket to applied universally and rigidly’. He added there may be cases where the guidance is inappropriate, for example where people lead shorter lives, but it should otherwise be regarded as ‘enduring’.