Personal Injury Guidelines – supplement

|General|Guidance

Supplement to the 11th edition

The 11th edition of the Guidelines for the Assessment for General Damages in Personal Injuries was published in September 2012 by Oxford University Press.

In the introduction to that edition, we foreshadowed the 10% increase in general damages for pain, suffering and loss of amenity to coincide with the legislative changes introducing the Jackson Reforms. We referred to the decision of the Court of Appeal in Simmons v. Castle in July 2012 [2012] EWCA Civ 1039. That had suggested that a 10% increase in general damages would apply to all cases decided from 1 April 2013, irrespective of the funding arrangements in place.

In October 2012 the Court of Appeal revisited that conclusion on the application of the Association of British Insurers [2012] EWCA Civ 1288; [2013] 1 All ER 334. The 10% uplift in general damages recommended by Sir Rupert Jackson was primarily to compensate claimants who were funding litigation through a CFA for the loss of their right to recover the success fee from the defendant. That is the effect of section 44(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. But there are exceptions found in Section 44(6). There was a possibility that a claimant would get the increase in general damages and still recover the success fee. The Court of Appeal revisited its earlier conclusion and in paragraph 50 of its judgment said:

“Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000”.

Section 44(6) provides:

“The amendment made by subsection (4) does not prevent a costs order including provision in relation to a success fee payable by a person (“P”) under a [CFA] entered into before [1 April 2013] if –

(a) the agreement was entered into specifically for the purpose of the provision to P of advocacy or litigation services in connection with the matter that is the subject of the proceedings in which the costs order is made, or

(b) advocacy or litigation services were provided to P under the agreement in connection with that matter before [1 April 2013].”

A new edition of the Guidelines will be published in the Autumn. It will reflect the necessary inflationary uplift, any new decisions, and provide two sets of figures – with and without the 10% uplift.