UK & Europe
Insurance & Reinsurance
In an unsurprising decision, the Court of Appeal has refused the Defendant in Swift v Carpenter permission to appeal the landmark decision handed down last month. The decision held that a reversionary interest model was held to be the most appropriate for the valuation of future accommodation claims in most instances.
Parties involved in the litigation have stated that an application for permission to appeal is expected to be issued in the Supreme Court. We will continue to provide any further updates as and when they are known.
The decision in the Court of Appeal was in response to an appeal from the Claimant following the application of the Roberts v Johnstone model for future accommodation.
On the issue of costs, the Defendant was ordered to pay the Claimant’s costs of the appeal, having accepted prior to judgment that “the [Claimant] was entitled to an uplift on damages of £65,095.65 for beating the part 36 offer... is entitled to indemnity costs after the expiry of the part 36 offer, and that interest is recoverable on damages and costs.”
The Claimant had made a without prejudice offer to accept £800,000 on 6 August 2018, and a Part 36 offer on 1 July 2019 of £800,000. The Defendant had made a Part 36 offer of £600,000 on 11 October 2018.
The Defendant had argued that the appeal costs up to and including the costs of adjournment of the appeal of 24 July 2019 should not be caught by the Part 36 offer, and that the Claimant should bear her own costs up to that point.
This was alleged on the basis that the successful basis of appeal “had not been formulated up to that point, and the adjournment was necessary because the appellant wished to reformulate the case.”
However, the Court held that that the Claimant “has been successful in the appeal, has beaten the level of her own without prejudice offer, and the respondent's part 36 offer of 11 October 2018.”
Regarding the appropriate interest rate on damages, the Court noted the unusual nature of the case and that there is no call in those circumstances for the rate of interest to be “greater than purely compensatory.” A rate of 4.5% was awarded. Similarly, the appropriate rate for interest on costs was held to be 4.5% given the “validity of the arguments advanced by both sides.”
In total, the Claimant was awarded:
We continue to note that whilst Swift is not strictly binding upon the Scottish Courts, the decision is highly persuasive and we have seen not seen any suggestion that an alternative to Swift methodology will be utilised in Scotland. However, given the lack of a reversionary interest market, there remains the possibility that an alternative model may be considered should the issue come before the Scottish Courts.