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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Summers v Bundy  EWCA Civ 126 (11 February 2016)
Cite as:  EWCA Civ 126
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ON APPEAL FROM SHEFFIELD COMBINED COURT CENTRE
(HIS HONOUR JUDGE MARK GARGAN)
London, WC2A 2LL
B e f o r e :
SIR TIMOTHY LLOYD
WordWave International Limited
trading as DTI
8th Floor, 165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
(Official Shorthand Writers to the Court)
The Defendant/Respondent did not appear and was not represented
Crown Copyright ©
LORD JUSTICE DAVIS:
The course of the proceedings
"I am asked to consider whether or not there should be a 10 per cent uplift. I am advised that whether or not that should be granted to a legally aided party is a discretionary matter. It seems to me that when considering whether to exercise that discretion I should take into account the following. The purpose of the 10 per cent increase was at this stage to compensate those claimants who had to pay the CFA uplift to their lawyers out of their general damages, the right to claim that CFA uplift from the defendant no longer being possible given the move to qualified one way cost shifting under the Jackson reforms. For that reason those who remain on old style CFAs who are able to get their uplift from the defendant are not entitled to the 10 per cent uplift. Because the claimant in this case is in receipt of legal aid he does not have any uplift to pay to his solicitor from his general damages and it seems to me therefore that it would be wrong to penalise the defendant who is not getting the benefit of saving the uplift in a case of this nature will [sic] give him a windfall where he is not having to pay his solicitor. So on balance I am not persuaded to exercise my discretion in favour of that increase. So damages for pain, suffering and loss of amenity at £27,500."
Simmons v Castle
"19. The only remaining question is precisely how the increase should be applied. We have concluded that it should apply to all cases where judgment is given after 1 April 2013. It seems to us that, while it can be said that this conclusion does not achieve perfect justice in every case, the same thing can be said about any other answer to the question, particularly in the light of a number of the forthcoming changes being made to the costs regime pursuant to Sir Rupert's recommendations. Our conclusion has the great merit of (i) providing a simplicity and clarity, which are both so important in litigation, and (ii) according with the recommendation of Sir Rupert, which is consistent with much of the rationale of the 10% increase in general damages.
20. Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000."
"31. Turning now to ABI's main argument, it has three steps. The first step is that the 10% increase in damages was intended as a quid pro quo for successful CFA claimants in return for depriving them of the right to recover the success fee as part of their costs. For the reasons discussed above, we accept that contention. The second step in ABI's argument is that it would therefore be wrong to permit CFA claimants who are entitled to recover the success fee to benefit from the 10% increase. On the face of it, at any rate, it is hard to challenge that contention: such claimants would have the penny and the bun. The third step is that this 'misalignment' can easily be met by reversing the conclusion reached in para 19, and adding a qualification to our conclusion in para 20, of our earlier judgment, namely that it would not apply to claimants who had entered into a CFA before 1 April 2013. Again, such an amendment, which appears at least on its face to be simple and clear, would seem to dispose of the misalignment."