Court of Appeal revises Simmons v Castle guidelines on general damages uplift

Posted: 12/10/2012

The Court of Appeal has revisited its guidance on how the 10% uplift in general damages, due to be implemented on 1 April 2013, will be applied.

Under the new ruling, given on Wednesday 10 October 2012, the 10% uplift will not apply to claimants who have the benefit of a conditional fee agreement (CFA) entered into before 1 April 2013.

The Court of Appeal's original decision, in the case of Simmons v Castle [2012] EWCA Civ 1039, applied the 10% increase in general damages to all cases decided after 1 April 2013. The ruling was intended to coincide with the implementation of the reform of civil litigation funding contained in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), based on proposals made by Lord Justice Jackson.

Responding to representations by the Personal Injury Bar Association (PIBA), the court also expanded the scope of the uplift to include not only claims in personal injury and clinical negligence but also other types of claim where damages were received for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit, mental distress and loss of the society of relatives.

The ruling follows the intervention of The Association of British Insurers (ABI) which asked the Court of Appeal to reconsider its original decision in Simmons v Castle (reported in our article on 27 July 2012).

The judgement said: ‘The primary purpose of the 10% increase in damages would be to compensate successful claimants, as a class, for being deprived of the right which they had enjoyed since 2000 to recover success fees from defendants, in cases where a claimant was funding the legal costs of pursuing his or her claim by a CFA.’ The court agreed with the ABI's position that limiting the scope of the uplift in this way would cause fewer procedural problems, notably in the case of Part 36 Offers to Settle where the uplift might make a Part 36 Offer less tempting.

Tim Palmer, partner in the clinical negligence and personal injury team at Penningtons, commented that the planned implementation of LASPO is under six months away. While we welcome clarification of the new civil justice funding reforms, we are still in the dark about how a number of these extensive reforms are going to work in practice. In particular, detailed regulations governing Qualified One-way Cost Shifting and the new proportionality test are outstanding. The Ministry of Justice needs to get to work and publish this information as a matter of urgency.

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