On 10 October 2012, the Court
of Appeal revised its decision in Simmons
v Castle [2012] EWCA Civ 1039, following an
application made by the Association of British Insurers inviting the Court to
reconsider whether the proposed 10% increase in general damages should only
apply where claimants’ legal funding arrangements were entered into after 1
April 2013.
In the Court of Appeal’s
original judgment, handed down in July, it had provided guidance in accordance
with the reforms proposed by Sir Rupert Jackson in his Final Report on Civil litigation Costs, holding that as of 1 April
2013 the relevant provisions of the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 (LASPO) would be implemented, thereby increasing general
damages by 10%.
The Court reiterated that the primary
purpose of the 10% increase is to compensate successful claimants who fund
their litigation through conditional fee agreements (CFAs) and who will lose
their rights to recover success fees from defendants for CFAs entered into
after April 2013.
In its later decision, the Court clarified
that the 10% increase will
only apply to judgments given after 1 April 2013, irrespective of when funding
arrangements were entered into. However, the Court further held that the
increase will not apply to claims that fall within section 44(6) of LASPO: that
is claimants who enter into CFAs before 1 April 2013, as the courts will have
the power to award costs that include success fees in such circumstances.
The Court also offered
clarification on what sort of general damages benefited from the 10% increase.
Namely, pain and suffering, loss of amenity, physical inconvenience and discomfort,
social discredit and mental distress, whether claimed in tort or in contract.
The sort of claims covered being: personal injury, professional negligence,
clinical negligence, nuisance, defamation, housing disrepair claims and
discrimination claims before the employment tribunal.