Court of Appeal: Swift v Carpenter
Over three days last week the Court of Appeal heard the test case challenge to the current approach to quantifying claims for alternative accommodation set out in Roberts v Johnstone. The discount rate had, for a long period, been set at 2.5% but when the Lord Chancellor revised the rate to -0.75% with effect from 21st March 2017 (then subsequently to -0.25%) the Roberts v Johnstone calculation produced a negative figure. On a purely mathematical basis this results in no definable loss to a claimant.
The issue was very close to coming before the Court of Appeal in the case of JR V Sheffield Teaching Hospitals NHS Trust in 2017 but the claim for accommodation was settled shortly before the hearing.
In Swift Mrs Justice Lambert reached a similar conclusion to Mr Justice William Davis In JR. Mrs Justice Lambert found that, despite accepting that there was a reasonable need for alternative accommodation and assessing a figure of damages in respect of the same of £900,000, the Court was bound by the authority of Roberts and such the appropriate calculation resulted in a nil award.
The central questions have remained:
- Whether the Court of first instance and or the Court of Appeal has jurisdiction to distinguish Roberts (or apply an alternative calculation) or whether it is bound by the decision in the House of Lords in Roberts and therefore cannot depart from it?
- If the Court has such jurisdiction should it depart from the Roberts formula?
- If so how and what should be the basis for calculation of alternative accommodation claims going forward?
Certain options have been agreed between the parties in Swift to be unviable. The remaining options which have been mooted by the parties if the claimant/appellant succeeds in persuading the Court to revisit the formula include:
- Full capital cost
- A deduction from full capital cost to reflect the market value a reversionary interest
- Awarding potential life borrowing costs
The full skeleton arguments of the claimant/appellant, defendant/respondent and the intervener, PIBA, can be accessed below.
Inevitably Judgment has been reserved and there has been no indication as to when it will be handed down. A full article on the Judgment will be released in due course.
Claimant/appellant – see here
Defendant/respondent – see here
Intervener, PIBA – see here