General damages to increase by 10%
The Court of Appeal today confirmed that general damages will increase by 10% for all judgments made after 1 April 2013.
Senior figures at the judiciary said the judgment was being made several months in advance to provide 'simplicity and clarity'.
The uplift was a key element of Lord Justice Jackson’s recommendations for reform of the civil litigation system. But with the increase not included in government legislation to enact Jackson’s report, the judgment said it would be 'a breach of faith’ for the judiciary not to ensure trial judges would apply it.
In the judgment, the lord chief justice, master of the rolls and vice-president of the Court of Appeal said the uplift would not achieve 'perfect justice in every case’, but that the same thing could be said of any of the changes happening to the civil system.
The uplift will apply to general damages for pain, suffering and loss of amenity in personal injury, nuisance, defamation and all other torts which cause suffering, inconvenience or distress to individuals.
Comments
Increase in damages from April 2013
The intention to increase damages by 10% in all (tort) cases where judgment is given after 1 April 2013 does not quite make sense to me.
I understood the rationale for the increase was to compensate Claimants who would no longer be able to recover the success fee payable under their Conditional Fee Agreement.
Leaving aside the fact the increase will not achieve that (and that a general increase is a windfall to those not on a CFA), the blanket increase from April 2013 in all cases means it will apply to those Claimants who can recover their success fees.
Meanwhile, presumably, it is now negligent to settle any case or permit it go to trial before April 2013?
Link
The case is on bailii, however: Simmons v Castle.
Nick Hanning's point about settling (or letting a case go to trial) before April 2013 is an interesting one, upon which the Society should really be offering some guidance. The Court of Appeal's judgment does appear to put claimant lawyers in a difficult position, because it now appears to be in the client's interests to be tardy in prosecuting or compromising the claim.
There is also the question of why it is appropriate for the Court of Appeal to be making changes such as this. If (as paragraph 15 of the LCJ's judgment states) this change is attributable to the changes in the costs regime as a result of the 2012 Act, shouldn't an increase in damages of this kind (and the date upon which such an increase comes into operation) be decided and implemented by the legislature?
The whole issue of costs and
The whole issue of costs and part 36 offers is a mess and needs to be re looked at in terms of proportionallity to the Legal Aiders whos solicitors run cases at any cost.The opponent paying gets the tab either way and with 8% added on as an extra good measure. Why put your money in pensions or banks!!
The link to the judgment is
The link to the judgment is http://www.judiciary.gov.uk/media/judgments/2012/simmons-castle-judgment-26072012
Surely damages are meant to
Surely damages are meant to be compensatory. If they are increased or decreased for any reason other than to compensate for loss, it must presumably be a breach of the human rights of the defendant.
Why is everyone getting so
Why is everyone getting so hysterial? If it's a 10% uplift to a category of damages that is woefully inadequate in the first place; take a look at the compensation you get for losing a child, or for losing an eye, events that are catastrophic no matter how you look at them, and you'll see how low general damages are.
And as for legal aiders being able to run cases at any cost, are you serious?! You only 'pay the tab' if you are negligent, and the replacement of this principle with QOCS, although admittedly clumsy and unfair, is more than compensated for by the abolition of recoverable success fees and ATE premiums. The whole of Jackson is a love letter to defendant lawyers, and people have the gall to complain about a 10% rise in general damages!
I honestly don't know why they didn't just limit the success fee claimant's can levy, or abolish them altogether and replace it with a serious, viable legal aid system. Defendants and claimants are both worse off since 1997.
Heil v Rankin
Seem to remember the same arguments as regards negligence if settle case before uplift being on the agenda when Heil v Rankin was being kicked about so we wrote to all clients advising that if they hold off they may get more money. An element requested that claim be held in abeyance and then got shirty when 6 months later they were no better off and it played hell with cash-flow. Agree that LS should be giving guidance on stance to take.
The Law Society does not give
The Law Society does not give guidance-it gives away the professions rights whilst taking its money.
Part 36
So - all offers should now have a 10% increase on current JSB guideline amounts, failing which its likely they wil be beaten at trial from a defendants perspective or be negligent from a Claimant's perspective? Courts should really give more consideration to the guidelines in play when the offer was made.
Damages increase
There needs to be some guidence and thought given to the effectiveness of any current part 36 offers in cases which are likely to be tried post 1st April. For instance, should an offer be made now, but the claimant beats it at trial on 2nd April by say only 5% has he beaten the offer or not? Before the increase in damages, he would not have beaten the offer. But post April, if he beats an offer because of the increase and just gets over the bar,who has the costs protection?
How can it be just that a defendant who has made a perfectly reasonable offer which currently puts the claimant at risk, has that protection removed simply because of a trial arbitarily taking place on a certain date?
Quess who is going to pay for
Quess who is going to pay for all this? Yes, all of us through our increased insurance premiums!