Swift v Carpenter – Update
The appeal in Swift v Carpenter was due to be heard on 23 and 24 July 2019. The claimant/appellant seeks to challenge the assessment of a ‘nil’ loss for the capital element of her accommodation claim. At trial Lambert J has assessed the required additional capital for a new property as £900,000 but awarded no damages on the basis that she was bound by Roberts v Johnstone and with a negative discount rate there was a nil multiplicand. That reflected the fact that applying Roberts v Johnstone and the decision of the House of Lords in Thomas v Brighton Health Authority (part of the Wells v Wells appeals) there is assumed to be no loss of return on capital investment.
The claimant had not relied on any expert evidence at first instance. On appeal the claimant sought to adduce fresh evidence in the form of an offer in principle of an interest-only mortgage.
At the start of the appeal the Court of Appeal invited the claimant to consider whether she should seek to rely on additional expert evidence. Following that indication, the claimant applied for and obtained an adjournment in order to obtain such evidence.
Following a hearing before Irwin LJ on 24 July 2019 an order for further directions in the appeal has now been made and can be found here. Of particular note is that permission has been given for four types of experts – IFA, surveyor/valuer, economist and actuary – on the following issues: (i) indexation of borrowing costs (ii) the impact of inflation (iii) investment return and discount rates (iv) mortgage rates, products and the costs of borrowing for the purchase of property; and (v) valuation of a potential reversionary interest in any property purchased by the Appellant. The appeal hearing will now be heard on 24 March 2020 with the Court of Appeal hearing live expert evidence on any issues where disagreement remains.
William Audland QC and Richard Viney act on behalf of the defendant/respondent, instructed by Dave Cottam and Marie Wildt of Weightmans LLP.