Summers v Bundy

Where judgment is given after 1 April 2013, general damages for pain, suffering and loss of amenity, and for the other specified categories, attract a 10 per cent uplift. The uplift is binding and is not a matter of trial-judge discretion. Its only exception is the transitional class within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Legal aid alone does not justify withholding the uplift. A further exception would undermine simplicity, clarity, consistency and certainty in awards and settlement offers.

The claimant brought clinical negligence proceedings after the defendant failed to investigate suspected deep vein thrombosis, which was followed by pulmonary embolism. Judgment in default was entered, and damages were assessed in the Sheffield County Court. The judge awarded £27,500 for pain, suffering and loss of amenity but withheld the 10 per cent uplift because the claimant was legally aided. Permission to appeal was granted by Jackson LJ. The defendant took no part in the proceedings. The central issue was whether the uplift was discretionary and whether legal aid created an additional exception to the rule established in Simmons v Castle.

1. Appeal allowed. The claimant was entitled to the 10 per cent uplift as of right. The award for pain, suffering and loss of amenity was therefore increased from £27,500, producing a total judgment sum of £46,759.30 including interest. The question of appeal costs was reserved for written submissions.
2. The first judgment in Simmons v Castle, [2012] EWCA Civ 1039, established that, from 1 April 2013, the proper level of general damages in the specified categories would be 10 per cent higher. The second judgment, [2012] EWCA Civ 1288; [2013] 1 All ER 334, qualified that principle only for claimants within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
3. The judge below had wrongly treated the issue as discretionary. The Court of Appeal’s objective in Simmons v Castle was simplicity and clarity, even though the scheme might not produce perfect justice in every individual case. Trial judges could not create a further exception for legally aided claimants by exercising discretion. Either all legally aided claimants outside section 44(6) received the uplift or none did; a case-by-case approach would create uncertainty and inconsistency in awards and settlement proposals.
4. The fact that legally aided claimants did not pay a CFA success fee from their damages did not alter the binding rule. The statutory exception was transitional and exhaustive for present purposes.

• Court of Appeal (Civil Division): Allowed the appeal and directed that the general damages award include the 10 per cent uplift.
• Sheffield Combined Court Centre (Sheffield County Court): Judge Gargan entered judgment in default on 1 May 2014 and assessed damages on 8 July 2015. He awarded £27,500 for pain, suffering and loss of amenity but withheld the uplift on the basis that the claimant’s legal aid made the matter discretionary.