01 August 2019

The well-known maxim of an Englishman’s home being his castle will soon be put to the test by the Court of Appeal in the case of Swift v Carpenter, [2018] EWHC 2060 (QB). The case centres on how to deal with accommodation claims in catastrophic personal injury cases given that the application of the current Roberts v Johnstone (R v J) approach has been an ongoing source of dispute between claimants and defendants.

Swift was first reported in July 2018 and was only the second reported case, following on from the judgment in JR v Sheffield Teaching Hospital [2017] EWHC 1245 (QB), commenting upon how R v J claims would be dealt with under the then new -0.75% discount rate.

At first instance in Swift, the Judge considered herself bound by the ratio of R v J. The effect of this was to deny the claimant an accommodation award. However, permission to appeal was granted.

The appeal was heard in late July 2019 and it appears that, at the invitation of the Court, the claimant applied for and was granted an adjournment to allow expert evidence to be taken on whether the ratio of R v J remains fit for purpose and whether alternative methods of calculating the value of accommodation claims are more suitable. The Court of Appeal intends treating Swift as a test case. It is for this reason that it has taken the unusual step of allowing evidence to be led, at the appeal stage, to assist in its determination.

In terms of the lie of the land with accommodation claims, in 2017 Lord Justice Jackson previously commented in JR v Sheffield Teaching Hospital that sooner or later the Court was going to have to grapple with the R v J issue. It appears that the Court of Appeal is using Swift as its opportunity to do so given that since the introduction of the -0.75% discount rate, the R v J approach has produced a negative award for accommodation claims. This will continue to be the case when the new -0.25% discount rate comes into force in England and Wales on 5 August 2019. It remains uncertain whether the Scottish Government will follow the UK Government’s suit and adopt the -0.25% discount rate, or whether it will adopt a positive rate of return when it sets the rate by the deadline of 1 October 2019.

The appeal in Swift will be heard in full in the spring of 2020. It remains to be seen which approach to accommodation claims will ultimately find favour as the Court has made clear that it actively wishes to consider all of the available alternatives, not limited to those contended for by the claimant in Swift.

Whilst the outcome of the appeal in Swift will not be binding upon the Scottish Courts, it will be considered to be a persuasive authority in subsequent cases where accommodation claims are in dispute.

At the moment, for those in search of clarity on how to approach accommodation claims, it remains a case of watch this space.

 Contact: Mark Hastings, Associate mfh@bto.co.uk T: 0141 221 8012