Commercial: Assignment of a claim for damages.
The case of Simpson v Norfolk & Norwich University Hospital NHS Trust [2011] EWCA Civ 1149 concerned whether assignment of a claim for damages for personal injury was possible. Mr. Alan Catchpole commenced proceedings against the Trust for an amount of £5,000 for a personal injury he suffered as a result of contracting an infection due to Methicillin Resistant Staphylococcus Aureus (MRSA) at the hospital. At the same time Mr. Catchpole contracted MRSA, the Claimant’s husband had died of cancer, however; he had also contracted MRSA at the same hospital, before he had died.
The Claimant, Ms Simpson, argued that in 2009, she and Mr. Catchpole had entered into a deed of assignment after he had agreed to assign his personal injury claim against the hospital to her for £1.
Ms Simpson was not interested in the financial reward which she would gain if her argument was accepted and her claim against the hospital (as Mr. Catchpole’s assignee) was successful. She was interested solely in using the publicity surrounding the case to highlight the Trusts short comings when dealing with MRSA.
However if successful Ms Simpson’s case would have had very serious and far reaching ramifications and could have paved the way for the rise of “Professional Claimant’s” i.e. litigants who purchase the deed of assignment from Claimant’s to make a profit from the damages awarded, for themselves.
The original case was struck out after the Defendant made an Application under CPR 33.4 on the grounds that Ms Simpson did not have sufficient interest in the claim and that the claim was contrary to public policy.
Ms Simpson Appealed.
The Court of Appeal first of all considered whether or not a claim for damages for personal injury was capable of assignment at all. The court found that a claim for damages for a personal injury, in principle was capable of being assigned.
However, the court found that not all claims for damages for personal injuries could be assigned. The court decided that the assignee would have to point to the existence of someone with a sufficient interest in the case.
In this case Dame Janet Smith O.B.E. concluded that:
“The assignment in this case plainly savours of champerty, given that it involves the outright purchase by Mrs. Simpson of a claim which, if it is successful, would lead to her recovering damages in respect of an injury that she has not suffered… In my view this is a case of an assignment of a bare right of action, in the sense that it is an assignment of a claim in which the assignee has no legitimate interest, and is therefore void. For these reasons I would dismiss the appeal.”
This decision severely curtails the possibility of creating a market for buying and selling claims. Defendants should still be aware that there are situations in which a Claimant may assign a cause of action if the assignee could be seen to have a sufficient interest in pursuing the claim.
Revised May 27th 2012