Judgement handed down 16th February 2012 to applause interest remains recoverable!

Simcoe v Jacuzzi Group UK Plc

The Court of Appeal has now handed down Judgment in the case of Simcoe v Jacuzzi Group UK PLC and after considerable debate and some controversial decisions that brought into question years of established practice the Court have finally brought clarity to the issue of whether or not interest is recoverable from the date of the authority giving rise to costs as opposed to the date of the final costs certificate.

Firstly, CPR Part 40.8(1) is ultra vires in the County Court and has no application to County Court proceedings. Accordingly, there no discretion for a judge in the County Court to “order otherwise”. Secondly, the incipitur rule applies by force of secondary legislation and interest on costs runs from the date of the costs order. Thirdly, regardless of the ultra vires point, the incipitur rule remains the ‘normal rule’ and the starting point for interest runs from the date of the costs order.

The Court of Appeal also clarified a much vaunted argument by Defendants that the Claimant is not ‘out of pocket’ in any event. The Court found the fact a Claimant’s claim may be funded under a CFA and the Claimant is not ‘out of pocket’ is not a good reason to “order otherwise”. When the case has been ‘funded’ by someone – be it (in effect) the solicitor or a third party funder there is no reason not to award interest and any suggestion of a windfall is addressed by interest being payable by the Claimant to the funding party.

Comments are closed.