Swift v Carpenter: permission to appeal refused, and Respondent to pay costs

06/11/2020

Following the substantive appeal judgment in this test case on accommodation claims which was handed down on 9th October 2020, in which James Arney KC continues to act for Mrs. Swift The Court of Appeal today handed down their ruling on the costs of the appeal and the Respondent’s application for permission to appeal.

Permission to appeal was refused.

The Respondent has been ordered to pay Mrs. Swift’s costs of the appeal, rejecting arguments made by the Respondent that the 2019 adjournment to enable expert evidence to be adduced merited a different approach.

The Court distinguished the case of Cheeseman v Bowaters [1971] 1 WLR 1773 (where a late amendment to pleadings to add a new claim had resulted in a claimant not recovering all costs despite beating the defendant’s offer).

The Court in Swift had regard to the fact that Mrs. Swift had beaten her own without prejudice offer to accept £800,000 made in August 2018, and had comfortably beaten the Respondent’s without prejudice and Part 36 offer of £600,000.

In addition, Part 36 consequences applied to costs from 23/7/19 (pursuant to Mrs. Swift beating her own Part 36 offer to accept £800,000), with the Respondent ordered to pay: –

a) Costs from that time on the indemnity basis;
b) Additional damages of over £65,000
c) Interest on damages at 4.5%, amounting to over £43,000;
d) Interest on costs at 4.5%.

When account is taken of the additional damages, interest on damages and the appeal award of £801,913, Mrs. Swift’s total damages figures exceeds the £900,000 full capital value that was in issue between the parties on the appeal.

It is understood that the Respondent is considering renewing that application before the Supreme Court.

James Arney KC, led by Derek Sweeting KC on the appeal, instructed by Grant Incles of Leigh Day.

The Judgment can be found below.