Simcoe -v- Jacuzzi UK Group PLC [2012] EWCA Civ 137

Posted on Thursday, February 16th, 2012

C had been represented by Irwin Mitchell under the terms of a conditional fee agreement in an action for damages arising from industrial disease. Damages and costs were agreed. The only issue was whether interest on costs was payable from the date on which the order was made, the incipitur rule, or the date on which the costs were agreed or assessed, the allocator rule. The District Judge, following Gray –v- Toner, found that interest should run from the date of assessment. C appealed. The appeal was sent directly to the Court of Appeal because it raised an issue of principle. C argued that CPR 40.8(1) was invalid in the County Court because the concurrence of the Treasury had not been sought in its making. Therefore s. 74(1) of the County Courts Act 1984 and the County Court (Interest on Judgment Debts) Order 1991 applied, which mandated the incipitur rule and allowed the Court no discretion. C also argued that even if CPR 40.8(1) did apply, the incipitur rule was the normal rule and the fact that the case was funded by way of a conditional fee agreement was not a good reason to order otherwise. The Court agreed with C on both arguments finding that the 1991 Order could not be amended without the concurrence of the treasury which was required by s. 74(1) of the County Courts Act. The Court did consider that the Treasury’s concurrence might be a mere formality but declined to rule on whether it could have retrospective effect so as to render CPR 40.8 valid from April 1999. Furthermore, following Lord Ackner’s reasoning in Hunt –v- R M Douglas (Roofing) Ltd, their Lordships found that the fact that C’s solicitors were acting under a conditional fee agreement did not

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