Simpson v Norfolk & Norwich University Hospital NHS Trust

A negligence claim for damages for personal injury is a legal thing in action and is capable in principle of assignment. Its personal subject matter does not make it inherently unassignable. Public policy nevertheless renders an assignment of a bare right of action void unless the assignee has a sufficient legitimate interest in the litigation, distinct from the benefit of recovering damages. An honourable but collateral campaign against the defendant is insufficient. The restriction is a proportionate control of the use of property, rather than a deprivation, under Article 1 of Protocol I where the claimant remains free to pursue the claim. The outright purchase of a claim to recover damages for an injury not suffered by the assignee is champertous.

Alan Catchpole brought a negligence claim against the hospital for personal injury allegedly caused by an MRSA infection. He assigned the claim to Jennifer Simpson for £1, and she pursued it in her own name and for her own benefit. The hospital applied to strike out the claim under CPR rule 3.4.

The District Judge and Cambridge County Court held that the claim was inherently incapable of assignment. The County Court also held that, even if assignment were possible, Mrs Simpson lacked a sufficient interest to support it. The appeal concerned the inherent assignability of a personal-injury cause of action, the public-policy limits imposed by maintenance and champerty, and the compatibility of those limits with Article 1 of Protocol I.

1. Disposition. The appeal was dismissed. The Court of Appeal held that the claim was capable of assignment in principle, but that this particular assignment was void.
2. Inherent assignability. A claim for damages for personal injury is a legal thing in action and a species of property. Section 136 of the Law of Property Act 1925 provides a procedural mechanism for an assignee to sue in his own name; it does not itself make previously unassignable choses assignable. The relevant question is whether the identity of the person to whom the obligation is owed is essential. The obligation to pay compensation arises by operation of law and is not personal in that sense. Procedural complications concerning statements of truth, disclosure, set-off and counterclaim do not make the claim inherently unassignable. Ord v Upton [2000] Ch. 352 supported the classification of the claim as a thing in action, although its bankruptcy reasoning did not determine voluntary assignability.
3. Maintenance and champerty. The principle in Trendtex Trading Corp v Credit Suisse [1982] A.C. 679 remained applicable: the law will not recognise an assignment of a bare right to litigate unsupported by a sufficient legitimate interest, and an assignment enabling profit from litigation will generally savour of champerty. The more liberal approach to conditional fee and related agreements in Giles v Thompson and Devlin v Baslington [1994] 1 A.C. 142, R (Factortame) v Secretary of State for Transport, Local Government and the Regions (No.8) [2003] Q.B. 381 and Sibthorpe v London Borough of Southwark [2011] EWCA Civ 25 did not govern a straightforward assignment of a tort claim.
4. Application. Mrs Simpson had no legally recognised interest in Mr Catchpole’s treatment or claim. Her legitimate motive of pursuing a campaign against the hospital was collateral to obtaining a remedy for the alleged wrong. Recognising it as sufficient could distort decisions about mediation and compromise and encourage trafficking in claims. The outright purchase of the claim therefore amounted to an assignment of a bare right of action and was void.
5. Article 1 of Protocol I. The claim constituted property for Convention purposes. The restriction on assigning it to a person without a legitimate interest pursued the public interest, was proportionate and struck a fair balance. It was a delimitation, not a deprivation, because Mr Catchpole remained free to pursue the claim himself. Mrs Simpson consequently acquired no protected property interest.

• Court of Appeal (Civil Division): [2011] EWCA Civ 1149. Held that a personal-injury cause of action was assignable in principle, but that the assignment to Mrs Simpson was void for want of a sufficient legitimate interest and as champertous. Appeal dismissed.
• Cambridge County Court: Dismissed Mrs Simpson’s appeal from the District Judge. Held that the claim was inherently incapable of assignment and, alternatively, that Mrs Simpson lacked a sufficient interest to support the assignment.
• District Judge Kirby: Struck out the claim under CPR rule 3.4, holding that the claim was incapable of assignment.