Challenge to Roberts v Johnstone accommodation claims

The court has invited the claimant to adjorn her appeal so it can hear expert evidence in the test case that reviews the approach in Roberts v…

Swift v Carpenter Court of Appeal

The facts

The claimant sustained serious injuries leading to a below knee amputation of the left leg in a road traffic accident in 2013. She was awarded damages in excess of £4 million but, significantly, received nothing for the capital costs of accommodation. Mrs Justice Lambert concluded that she was bound by Roberts v Johnstone which resulted in a nil award. The claimant was given permission to appeal to the Court of Appeal.

First instance decision

The claimant submitted that the traditional Roberts v Johnstone approach was unfair as it produced no loss due to a negative discount rate.

Alternative approaches were canvassed by the claimant including a Roberts v Johnstone calculation using a 2% rate of investment return which was the claimant’s preference, the full capital cost of an interest-only mortgage for life, an interest-only mortgage for life funded by a PPO and the increased cost of renting special accommodation.

Mrs Justice Lambert rejected the claimant’s arguments, finding that she was bound by Roberts v Johnstone which prevented an award being made for the additional capital cost of special accommodation. Permission to appeal to the Court of Appeal was granted.

Court of Appeal

At the invitation of the Court of Appeal, the claimant applied to adjourn her appeal in order for the court to receive further expert evidence. She had not sought to adduce expert evidence at first instance.

The Court of Appeal has made it clear that this will be the test case that reviews the approach in Roberts v Johnstone.

The appeal hearing will now take place on 24 March 2020 with a three day time estimate. Uniquely, the Court of Appeal will hear evidence from a number of experts instructed by the parties, namely:

  1. An independent financial adviser
  2. A chartered surveyor/valuer
  3. An economist
  4. An actuary

The experts will give evidence on the following issues:

  1. Indexation of borrowing costs
  2. The impact of inflation on the issues arising in the appeal
  3. Investment returns and discount rates
  4. Mortgage rates, products and the cost of borrowing for the purchase of a property
  5. The valuation of a potential reversionary interest in any property purchased by the appellant

The Personal Injuries Bar Association have been given permission to intervene in the appeal.

Lord Justice Irwin will be responsible for case management of the appeal.

Comment

This will be an appeal of some significance to the market.

In allowing the claimant’s application for an adjournment, the Court of Appeal appears determined that it has all of the evidence before it to properly consider Roberts v Johnstone and the approach to accommodation claims.

Weightmans continue to act for the defendant in this case and have instructed William Audland QC and Richard Viney of 12 Kings Bench Walk.

If you have any questions or would like to know more about our legal update, please contact Dave Cottam, Partner, on 0116 2428924 or dave.cottam@weightmans.com.

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