When the judgment in Swift v Carpenter was handed down on 9 October 2020, that wait was finally over. In the first case, JR -v- Sheffield Teaching Hospitals NHS Foundation Trust (2017) the judge considered himself bound by Roberts. 14.06.2019 James Rowley QC - A Quantum Update - June 2019 . However, for those who have only joined the PI practitioner world in the last few years, there is an awful lot to catch up on. The same example for our 30-year-old male allows him a claim of £233,300 for accommodation costs. Roz Boynton details the key compensation points in a case in which the claimant was severely injured in a road traffic accident in 2013. Take as an example, a female Claimant who is 35 years old at the date of trial, who has sustained a serious injury which means she requires single storey accommodation. The Claimant suffered serious lower limb injuries in a road traffic accident in 2013 which resulted in her left leg being amputated below the knee. She explains the judgment and provides a worked example. Swift v Carpenter appeal could ensure Claimants properly compensated. Ryan holds all the reversionary interest in the property. The claimant, Charlotte Swift, sustained life-changing injuries at the age of 39 when she required a below the knee amputation following a road traffic accident. The appeal was heard before Lord Justice Underhill, Lady Justice Davies and Lord Justice Irwin. The Claimant is left with a negative figure for accommodation. 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 … Appeal Handed Down in Swift v Carpenter [2020] EWCA Civ 1295 – 12 King’s Bench Walk. Follow us Twitter LinkedIn Instagram Facebook Youtube. The Defendant’s primary case was that the Court is bound by R v J as no exceptions apply. For ease of lingo if you watch the hearings on YouTube, in this example Ryan would be the “remainderman”. As a lawyer specialising in complex and serious injury cases, I was delighted to read the landmark judgment of the English Court of Appeal in Swift v Carpenter (2020). With the new discount rate, it was only going to be a matter of time before this accommodation conundrum came before the Courts; cue the first instance decision in Swift v Carpenter judgment in July 2018. Let us assume that her pre-injury property was worth £200,000 but the new property she now requires costs £300,000. Swift v Carpenter (2018) relates to a road traffic accident in October 2013 in which Swift sustained serious leg injuries leading to a below-knee amputation. Accordingly, the deduction from the initial capital cost will be lower. The claim was set down as the capital difference between the new and existing property x discount rate x life expectancy. (4)An order under subsection (1) may in particular distinguish between classes of case by reference to—. read more. It was worth the wait. To avoid such a windfall, Roberts v Johnstone (1989) set out a formula for providing compensation for future accommodation costs based on the loss of the use of capital used to purchase a more expensive suitable property. Swift v Carpenter: Court of Appeal not bound by Roberts v Johnstone. The Defendant noted that the current discount rate is not the one which was in place when Swift was decided at first instance (it was -0.75% at that time) and thus an adjustment needed to be calculated; they suggested a yield of 0.75% for this claim. When the new calculation was applied, Ms Swift was … This is the simplest proposal. This meant claimants who suffered the most serious, life-changing injuries requiring the purchase of alternative suitable accommodation were, for years, inadequately compensated. From around 2017, with the advent of negative discount rates at -0.75%, the R v J formula proved completely unworkable. Upon death, if she had not retained the interest herself, it would pass to the third party who had purchased the reversionary interest, and the Claimant’s compensation for special accommodation would be exhausted. Chambers News. Over the whole period they say the Claimant is unlikely to suffer any net loss. A significant amount of time was spent on Section A1 of the Damages Act 1996; the power it confers on the Lord Chancellor; and whether it prohibits the Court from setting another discount rate for special accommodation claims. The bad news is that the hearing was adjourned (for the parties to file further evidence). Once I die, the property reverts back to Ryan and not to my estate. The matter proceeded to appeal, and after various delays, was heard remotely from 23-25 June 2020 in the Court of Appeal, with several witnesses, consisting inter alia, of economists and actuaries. future wage loss or compensation for pain and suffering) to make up the shortfall. These included periodical payments to fund an interest only mortgage for life, and a loan. Accommodation Claims: Swift v Carpenter; Accommodation Claims: Swift v Carpenter. The Court of Appeal has found that Roberts v Johnstone no longer achieves fair and reasonable compensation for an injured claimant. 5 Comments. Where a claimant sustains serious injury, their accommodation may no longer be suitable for their needs. Linkedin; Twitter; Google+; Facebook; Archive. They submitted that the Court did not mandate the use of R v J in very different circumstances. Furthermore, the court has specified that the formula for calculating accommodation costs should not be seen as a ‘straitjacket’ to be applied universally and rigidly so this leaves scope for the formula to be revisited in the event of a significant change to the discount rate. We have had three decades of injustice to claimants since that decision. By the time of the appeal, there were a number of proposals which the parties had agreed were unworkable. This long-awaited decision outlines a new approach to calculating compensation … Is it for the Court to depart from R v J? Darryl Allen QC of Farrar’s Building […] [2]Thomas v Brighton Health Authority [1999] 1 AC345, Coronavirus (COVID-19) – Please view our, **PLEASE DO NOT USE MICROSOFT INTERNET EXPLORER TO VIEW OUR WEBSITE.**. The recent landmark decision in Swift v Carpenter (2020) demonstrates a fundamental change in the way that accommodation claims in personal injury cases are quantified, in a manner that is likely to have a significant impact on the value of those claims. Whilst discount rates remained positive at 2-2.5%, the R v J formula avoided windfall, but a claimant was often forced to use funds from other heads of claim (e.g. 22 October 2020 22 October 2020. The claimant was given permission to appeal to the Court of Appeal. Swift v Carpenter: The Court of Appeal have, today, refused the Respondent’s application for Permission to Appeal to the Supreme Court and it is now left open to them to seek permission from the Supreme Court directly. Swift sets out to redress the problem (in times of negative discount rates) for a seriously injured person needing larger accommodation. Many claimants were unable to recover damages in law for future accommodation costs. In Swift v Carpenter, Ms Swift had a capital shortfall of £900,000. share Twitter LinkedIn Email. She was awarded damages in excess of £4 million but, significantly, received nothing for the capital costs of accommodation. Winston Hunter QC. (3)An order under subsection (1) may prescribe different rates of return for different classes of case. The Defendant replied to written submissions by PIBA as to whether the 1.1% was above RPI because, if it was, that would cause issues with permissibility of factoring RPI into a multiplicand. The purpose of an award of damages is to put a person back into the position they would have been but for the accident. The argument by the Defendant was quite unusual; they said (relying on actuarial evidence) that the Claimant cannot show that R v J leads to injustice, because she cannot prove a net loss. Bill Braithwaite QC outlines the current issues in following Roberts v Johnstone for accommodation claims ‘The problem of Roberts v Johnstone has become important because of the gradual disparity between damages for pain and suffering and house prices – a sad reflection on the law’s approach to damages for injuries (or a broken property market? On 9 October 2020, the Court of Appeal ruled in Swift v Carpenter. Intervention during the hearing was interesting in this regard; dealing with whether the previous cases were binding given that the argument put forward was to disregard the R v J methodology entirely and querying whether R v J was proposing the best approach, as opposed to the only approach. In Swift v Carpenter the appropriate discount rate was held to be 5% which can be represented as 1.05. Swift v Carpenter: Accommodation costs dispute reaches Court of Appeal. The Claimant says this method allows for differing life expectancies (with the reversionary interest increasing in the example before the Court as the life expectancy reduces) and is therefore applicable in all cases. By the time the appeal was heard, the Claimant had bought a property suitable for her needs, without having to borrow. Mrs Justice Lambert concluded that she was bound by Roberts v Johnstonewhich resulted in a nil award. Follow us on Twitter. The much anticipated and long-awaited decision in Swift v Carpenter was handed down by the Court of Appeal on Friday 9 th October 2020. This resulted in inadequate levels of damages to those who suffered serious injuries, going against the laid down maxim that damages awarded should be fair and reasonable. By John Hyde 2020-06-23T13:25:00+01:00. Available to view on demand (registration required) Â. Their decision changes the law for people requiring special accommodation following an injury. This is where it gets tricky. Part 36: enhancements payable under CPR 36.17(4) in respect of interest on damages and costs where the claimant had beaten her own Part 36 offer. The conventional formula used to calculate accommodation costs was confirmed by the case of Roberts v Johnstone[1]  [“R v J”] and has been in use ever since. Seminars & Papers. The remote streaming videos remain on YouTube and, if you are a member of PIBA, the skeletons are available for your perusal. The article below attempts to explain the background, simplify some of the new proposals and look at how accommodation claims may look in the near future. For example, a severe spinal cord injury confining an individual to a wheelchair, renders a two-bed upper flat unsuitable. A property needs to be single storey with additional rooms for carers, storage and a therapy room. The claimant sustained serious injuries leading to a below knee amputation of the left leg in a road traffic accident in 2013. This method was based upon an assumed yield for the reversionary interest of 6.6% per annum. In other words, nil recovery for future accommodation costs. Roz Boynton details the key compensation points in a case in which the claimant was severely injured in a road traffic accident in 2013. Associate solicitor Jonathan Bamforth shares his view on the Swift v Carpenter appeal and the need for fair compensation for clients. That would create a lower initial value for the reversionary interest than the methodology put forward by the Defendant (because if you are relying on a higher yield then you start with a lower initial value). Ampersand Bitesized – Complications of accommodation costs – understanding Swift v Carpenter Archie MacSporran – recorded on 23rd October 2020. It seems that, if an alternative methodology is to be adopted by the Courts rather than R v J or an award of the full capital cost, a reversionary interest calculation is the clear front runner. 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