Although the Law Commission paper Damages for Non-Pecuniary Loss was published in April 1999 it has only recently begun to receive the attention it deserves bearing in mind the ramifications for both claimants, and those who p ay their damages for personal injuries, which are, by and large, insurance companies.The government has stated that parliamentary time cannot be given to put into effect the recommendations of the Law Commission so it has fallen to the Court of Appeal to wrestle with a wider problem, which will not be resolved by an overnight increase in damages.In early November, it was envisaged that the Forum of Insurance Lawyers (FOIL) and the Association of Personal Injury Lawyers (APIL) between them would produce up to a dozen 'real' cases with 'real' appeals covering a range of injuries to allow the Court of Appeal to set a tariff as envisaged by the Law Commission (see [2000] Gazette, 27 January, 14).

It was immediately apparent that the two organisations -- even with their wide contacts -- were not going to be able to deliver the goods.

This was not for want of trying, but the reality is that even before the changes to the rules, which took effect in April 1999, few personal injury cases reached a trial.

Those that did seldom involved damages of less than £50,000.Until recently there were, in fact, only four cases for the Court of Appeal to consider when it sits on 28 February, and in at least one of those the Law Commission paper was not argued before the judge at first instance.

There may now be up to seven cases, but they do not cover the range of injuries to deliver proper guidance to practitioners and the judiciary.The Law Commission's conclusions are largely based upon research involving 1,900 recipients of questionnaires from the Office of National Statistics (ONS).

What seems to have been overlooked is that the results of the ONS survey demonstrated that a third of those interviewed said that damages are either at the right levels, or are too high.

Furthermore, it was only 58% who said that damages should be paid above the current maximum levels.

When it came to suggesting the amount by which damages ought to have been increased, once again it was only a little more than half of the interviewees who suggested that damages awards ought to be one-and-a-half times the current maximum or more.

This is hardly an overwhelming indication of public opinion for the Court of Appeal to take into consideration.The real issues for practitioners are those of certainty, and delivery of swift resolutions to the justifiable claims of injured parties.

The issue of certainty should not be underestimated, and it has been long accepted that the earlier the claimant receives his or her money the more likely that person is to make a full recovery.

There is at long last a great deal of attention being paid not merely to the processing of claims but to the rehabilitation of claimants so it is unsatisfactory that against that background there is now considerable uncertainty for both claimants and the compensators.We are less than a year into Lord Woolf's reformed legal system, and we face stockpiling of claims with its consequent effects on claimants, and defendants.

The Court of Appeal can prevent that additional strain of uncertainty by refusing to give in to the pressures which call for any increase in damages to be of retrospective effect.It is expected that the five-judge Court of Appeal will wish to take time to consider its judgment, and even then once the judgment has been handed down it should be expected that the matters raised will be taken forward to the House of Lords.

We can only hope that the Court of Appeal will be slow to rely on conclusions of mere statistical research into the entirely subjective exercise of compensating the victims of tortious acts causing personal injury.Change of this magnitude should always be managed to the benefit society as a whole, and should not be pursued for political expediency.