ON APPEAL FROM THE DERBY COUNTY COURT
RECORDER BURNS (SITTING IN NORTHAMPTON)
Strand, London, WC2A 2LL
B e f o r e :
THE MASTER OF THE ROLLS
THE VICE-PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
| CHRISTOPHER SIMMONS
|- and -
|ASSOCIATION OF BRITISH INSURERS
ASSOCIATION OF PERSONAL INJURY LAWYERS
PERSONAL INJURIES BAR ASSOCIATION
|First Interested Party
Second Interested Party
Third Interested Party
Mr Grahame Aldous QC for the Association of Personal Injury Lawyers
Mr Charles Cory-Wright QC and Mr Martyn McLeish for the Personal Injuries Bar Association
Hearing date: 25 September 2012
Crown Copyright ©
The Lord Chief Justice:
The procedural background to this application
"19. The only remaining question is precisely how the increase should be applied. We have concluded that it should apply to all cases where judgment is given after 1 April 2013. It seems to us that, while it can be said that this conclusion does not achieve perfect justice in every case, the same thing can be said about any other answer to the question, particularly in the light of a number of the forthcoming changes being made to the costs regime pursuant to Sir Rupert's recommendations. Our conclusion has the great merits of (i) providing simplicity and clarity, which are both so important in litigation, and (ii) according with the recommendation of Sir Rupert, which is consistent with much of the rationale of the 10% increase in general damages.
20. Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000".
The relevant statutory provisions relating to costs
"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]."
Section 45 of LASPO extends the right to charge contingency fees (under what are referred to as "damages-based agreements" as they are referred to) from employment cases to many other types of litigation. Section 46 of LASPO limits the ability of successful claimants to recover an ATE premium to a very restricted number of cases.
ABI's application: the arguments
The point raised by PIBA: the arguments
The reason for the 10% increase in damages
ABI's application: the main issue: CFA claimants
ABI's application: the secondary issue: other claimants
"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".