Court of Appeal Revises Judgment On General Damages Increase

Simmons v Castle

Back in July the Court of Appeal handed down judgment in Simmons v Castle (No.1) in which out of the blue they decided to announce that they were going to increase damages for general damages for pain, suffering and loss of amenity in tort by 10% from 1 April 2013. This was in response to the various Jackson reforms which are being implemented and in particular the fact the right of claimants to claim the success fee from the other side is about to be taken away and instead part of the whole of that fee may come from their damages.

It seemed strange at the time that the Court of Appeal was taking on what seemed to be in essence a quasi-legislating exercise (a phrase mentioned in the judgment itself when summarizing arguments by APIL). All the more so when they hadn't even asked for submissions on the topic.

So it was perhaps not surprising that the judgment was challenged and further submissions were then heard in September with a revised judgment being handed down a few days ago. What they decided was two-fold. First, that the 10% increase would not apply to cases which had begun before 1 April 2013 or more specifically that fall within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Second, that the 10% increase would not be limited to damages in tort but would apply to all civil claims for:pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit, mental distress, or loss of society of relatives.

The significance of this new judgment isn't really in what the Court of Appeal actually decided but in the approach they took to civil justice more generally. Specifically, the result appears to be more like a result of rushed horse trading than a considered legal judgment based upon precedent. Consideration was given to the aims of the Jackson proposals and that the increase in damages was seen as a quid pro quo to the taking away of the right to claim the success fee. But quid pro quos should not be the basis for judgments of the Court of Appeal and it leaves the very strong impression that the Court has started to enter into the political arena. Taking submissions from pressure groups or representative bodies is more akin to a political consultation than a court case and in my view it is parliament and not the courts which should have taken on such an exercise. This could have allowed a much fuller and more open consultation with room for further submissions and debate after the opening round. As it is, the Court of Appeal have now changed the law without the assistance of parliament procedure and its democratic checks and balances (such as they are). That might be all very well in what could be described as 'exceptional' circumstances but it sets a potentially very dangerous precedent indeed. It is to be hoped that the Court of Appeal will reflect on their hasty action in this matter and steer away from such intervention in future.