Simmons v Castle & Ors

General damages for specified forms of non-pecuniary loss in all civil claims were to increase by 10% from 1 April 2013. The increase covers pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit, and mental distress.

A claimant falling within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is excluded. That preserves the intended quid pro quo by preventing a claimant who may recover a CFA success fee from also receiving the damages increase. Conventional claimants and self-represented litigants remain entitled to the increase.

In the exceptional circumstances of prospective guidance affecting unrepresented future litigants, the court could reconsider its earlier declaration without creating a general exception to CPR 52.17.

This was an application in an underlying personal-injury appeal from the Derby County Court. The court had previously approved a settlement and, in a judgment delivered on 26 July 2012, declared that general damages in specified tort claims would rise by 10% from 1 April 2013: Simmons v Castle [2012] EWCA Civ 1039.

The Association of British Insurers, acting through the respondent, asked the court to reconsider whether claimants under pre-commencement conditional fee agreements should receive that increase despite retaining a statutory right to recover success fees. The Personal Injuries Bar Association also submitted that the increase should extend beyond tort claims and use a wider description of non-pecuniary loss.

The central issues were the transitional exception to the increase and the civil claims and heads of loss to which it applied.

1. Application granted in part. The court had jurisdiction to reconsider its earlier prospective declaration. That jurisdiction arose from the exceptional exercise undertaken in the earlier judgment: it gave future-practice guidance affecting many litigants who had not been represented or given notice. This was not a precedent permitting disappointed litigants generally to seek reconsideration; CPR 52.17 remained applicable.

2. The primary purpose of the 10% increase was to compensate successful CFA-funded claimants, as a class, for the loss of recoverable success fees under the reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The court therefore accepted the ABI's primary submission, but framed the exception by reference to section 44(6), rather than simply by the date on which a CFA was made. A successful claimant entitled under that subsection to recover a success fee from the defendant is not entitled to the 10% increase.

3. The court rejected the ABI's proposed exclusion of conventional claimants and self-represented litigants. They would not be worse off after 1 April 2013 in the way that claimants within section 44(6) would be better off. The temporary possibility of different damages awards depending on funding did not justify a wider exclusion.

4. The court also accepted that the increase should not be confined to tort. It applies in all civil claims to general damages for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit, and mental distress. Borderline claims or heads of loss must be determined on their merits if they arise.

5. The court deleted paragraph 19 of its earlier judgment and replaced paragraph 20 with the revised declaration.

• Court of Appeal (Civil Division): On a reconsideration application, the court varied its earlier prospective declaration in Simmons v Castle [2012] EWCA Civ 1039. It accepted the section 44(6) exception, rejected a wider exclusion for conventional claimants, and extended the increase to qualifying non-pecuniary damages in all civil claims.

• Derby County Court: Recorder Burns, sitting in Northampton, was the judge from whose decision the underlying personal-injury appeal came. No citation or disposition for that decision is stated in the judgment.