Simcoe v Jacuzzi UK Group plc

Yesterday the Court of Appeal handed down judgment in the case of Simcoe v Jacuzzi UK Group plc [2012] EWCA Civ 137 and gave us a clear answer to the question of whether interest on costs runs from the date of the costs order (the incipitur rule) or the date costs are assessed (the allocator rule).

Although the route by which the decision was reached is rather unusual, it was ultimately held that the incipitur rule rules and interest runs from the earlier date when the costs order is made. Further, the fact that a claim is funded by way of a CFA is not a good reason to depart from the normal rule.

Now we have a definitive answer. Unless the matter goes to the Supreme Court…

It is also worth mentioning the footnote in the Master of the Rolls’ leading judgment:

“I cannot end this judgment without referring back to the actual figures in this case. The claimant was seeking damages for significant, but relatively minor and straightforward, personal injury suffered while at work. The claim was presumably worth around £12,750, the agreed damages. The claimant’s costs of pursuing that claim, which did not go to trial, were nearly £75,000. Unless this is an exceptional case, the fact that, without even incurring the cost of as trial, it cost the claimant nearly six times as much to pursue the claim as it was actually worth suggests that something is out of kilter in at least some parts of the civil justice system. Both my own experience in this court and the evidence contained in Sir Rupert Jackson’s report on Civil Costs suggest that this is not a particularly exceptional case. It is therefore to be hoped that the changes which are in the process of being enacted and implemented in relation to civil costs and civil procedure will help ensure that costs become more proportionate. And that applies both to costs as between lawyer and client and to recoverable costs as between the parties to litigation.”

Given how this decision was reported in The Telegraph, this judgment may ultimately go down as being something of an own-goal for claimant lawyers. They may have won this particular battle but are rapidly losing the war.

18 thoughts on “Simcoe v Jacuzzi UK Group plc

  1. Selective at best, they defend and settles just before trial. What do you expect. Also wrong of judge to comment as he did as the sum was the total sum and included additionals

  2. another obiter comment based upon “political agendas”

    Quite frankly the MR should have known better – its a shot aimed at proportionality and he included the additionals

    Why wasnt the damning criticism of Defendant’s in Epsom College v Pierse Contracting Southern Limited published?

    maybe as doesnt cover insurance companies in glory?

  3. Have I missed something or did the court fail to compare differences between normal retainer and a CFA and deal with the compensatory factor.

  4. re normal retainer …

    why would they have to address it separately? they said the normal rules apply full stop and that CFA funding was not good reason to depart from the normal rules.

    a normal retainer (is a CFA not a normal retainer?) will therefore attract interest under the normal rules

  5. The MR did not look at whose fault it was for the costs having been incurred – he probably should have, but likewise the Defendant agreed to pay the same, so MR was arguably wrong for raising it. You also fail to mention the fact that MR criticised parties for satellite litigation over interest which has to be a shot at the Defendant and stated that his judgement was intended to cover all cases whether CFA, third party funded or privately etc as to argue otherwise would be a stain on the legal system.

  6. Simon,

    Reading some of the comments above I am reminded of the passengers on the Titanic enjoying yet another cocktail as the iceberg approached.

  7. Perhaps claims for interest will no go some way to appeasing claimant lawyers loss of interest.

    I, as a Claimant Costs Draftsman, strongly urge Defendant costs professionals (like GWS) put an appropriate spin on this judgment and carry on with their contentions relating to interest.

    I sincerely hope this gravy train is not coming to a halt any time soon!

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  9. trust me we are all aware of the issues and the changes that are coming.

    not agreeing with elements does not make us oblivious.

  10. Why on earth should a paying party expect to spin out detailed assessment proceedings for months and months, fail to make any payment on account and then cry foul when interest has to be paid? There’s nothing remotely unfair about that. The paying party hung onto its money for additional time, doubtless accruing or avoiding interest from its own bankers. It should not be entitled to do so at the receiving party’s expense – or even the receiving party’s solicitor’s expense. Solicitors are not actually some sort of social evil, you know. They have staff to pay, mortgage payments to meet etc.

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  12. I am not sure why any reasonable person would pursue a £12,500 by spending £75,000 – surely that is the issue? If the claimant was paying for his own legal advise there is no chance he would have done the same!!

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