England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COMBINED COURT CENTRE
(HIS HONOUR JUDGE MARK GARGAN)

		Royal Courts of Justice Strand London, WC2A 2LL
		11 February 2016

LORD JUSTICE DAVIS:

Introduction

1. This appeal, brought by leave of Jackson LJ, raises a short point as to the award of general damages for pain, suffering and loss of amenity in the context of a clinical negligence claim.
2. The point is this. The judge in assessing damages took the view that whether or not to award a 10 per cent uplift of the award of general damages following upon the decisions of the Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039; [2012] EWCA Civ 1288; [2013] 1 All ER 334 was a matter for his discretion. In the case before him, the claimant, Mr Summers, was at all relevant times legally aided. In such circumstances, the judge took the view that he should not be awarded any 10 per cent uplift of his general damages. The question arising is whether the judge was justified in so concluding.
3. The appeal comes before us in somewhat unusual terms procedurally. Although this was a clinical negligence action, the defendant, Dr Bundy, has taken no part and has not been represented in the proceedings at any stage. Whether this claim against him has in fact been notified to any insurers is not known to us. At all events, judgment was entered against the defendant in default and the assessment of damages was thereafter conducted in circumstances where he again was neither present nor represented. That has continued to be the position on this appeal.
4. As for the claimant, he had been legally represented throughout. He has put in detailed professionally and carefully drafted grounds of appeal with a skeleton argument in support.
5. When the application for permission to appeal was made, it came before Jackson LJ on the papers. There can, for reasons which do not need spelling out, be no judge with a greater knowledge and understanding of modern principles and procedures relating to costs. Jackson LJ took the view, as he stated, that the appeal was "bound to succeed". Having taken that view, and with an evident desire to try and save costs, he dispensed with the need for the attendance of the appellant or representation of the appellant by counsel at the hearing of this appeal. Thus the matter comes before us today. Nevertheless, we do of course have to consider for ourselves whether this appeal should succeed.

Background facts

6. In view of the issue raised on this appeal, the background facts need only the briefest summary.
7. On 30 December 2010, the claimant attended the Accident & Emergency Department at Doncaster Royal Infirmary. He was seen by the defendant, who was not an employee of the hospital but a general practitioner providing support. Unfortunately, the defendant failed to investigate whether or not the claimant was suffering from deep vein thrombosis. It turned out that he had been so suffering. This progressed and a pulmonary embolism, having a marked impact on his health, also developed.

The course of the proceedings

8. At all relevant times, the claimant has been legally aided. His claim form was issued on 17 December 2013 against the defendant. The personal injury alleged was properly particularised. Damages in excess of £100,000 were claimed. The claim was assigned to the multi-track. Judgment in default was entered on 1 May 2014, with damages to be assessed.
9. The assessment of damages came before Judge Gargan, sitting in the Sheffield County Court, on 8 July 2015. The claimant was represented by counsel at the hearing. The claimant gave evidence himself and also adduced a lengthy medical report.
10. The judge assessed the evidence fully and carefully. When considering the award for pain, suffering and loss of amenity he had regard to awards in four other cases, suggested to be comparable, put before him. He concluded that the right award in the circumstances of the case for pain, suffering and loss of amenity was £27,500. Having so decided, the judge then said this in the course of paragraph 14 of his judgment:

"I am asked to consider whether or not there should be a 10 per cent uplift. I am advised that whether or not that should be granted to a legally aided party is a discretionary matter. It seems to me that when considering whether to exercise that discretion I should take into account the following. The purpose of the 10 per cent increase was at this stage to compensate those claimants who had to pay the CFA uplift to their lawyers out of their general damages, the right to claim that CFA uplift from the defendant no longer being possible given the move to qualified one way cost shifting under the Jackson reforms. For that reason those who remain on old style CFAs who are able to get their uplift from the defendant are not entitled to the 10 per cent uplift. Because the claimant in this case is in receipt of legal aid he does not have any uplift to pay to his solicitor from his general damages and it seems to me therefore that it would be wrong to penalise the defendant who is not getting the benefit of saving the uplift in a case of this nature will [sic] give him a windfall where he is not having to pay his solicitor. So on balance I am not persuaded to exercise my discretion in favour of that increase. So damages for pain, suffering and loss of amenity at £27,500."

11. It is rather unclear why the judge said that he was "asked to consider" whether there should be a 10 per cent uplift. The position on behalf of the claimant has, as I understand it, always been that the claimant was positively entitled to such an uplift. It is also not entirely clear on what basis the judge said that he was "advised" that this was a discretionary matter.
12. Be that as it may, the total award, including damages for the claimant's loss of prospects in the employment market and also including interest, was £43,929 with costs.

Simmons v Castle

13. As is well known to all those specialising in this field, the consideration of a 10 per cent uplift for general damages (in consequence of the recommendations made to that effect in the final report on civil litigation costs by Sir Rupert Jackson, which were widely consulted upon) was undertaken by the Court of Appeal in the above cited case of Simmons v Castle. This was prior to the coming into force of the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("the 2012 Act").
14. The first judgment of the court (comprising the Lord Chief Justice, the Master of the Rolls and the Vice President of the Court of Appeal, Civil Division) was given on 26 July 2012. It set out the background and context in full. I need not restate it. The court indicated that it was "laying down a principle" to take effect in 8 months' time (paragraph 13). It noted that the 2012 Act was enacted in the relevant respects on the footing that the 10 per cent increase as recommended by Sir Rupert would be "formally adopted by the judiciary" (paragraph 15). It concluded that the increase should "apply to all cases where judgment is given after 1 April 2013". What the court said in conclusion was this:

"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 merit of (i) providing a 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."

15. So the principle of a 10 per cent uplift of general damages in the specified categories of case was therefore stated without any qualification or exception at all.
16. This attracted an application from the Association of British Insurers. There was a further hearing before the court, identically constituted. A number of professional bodies were represented before the court. What was said in short, amongst other things, was that the principle thus far enunciated by the court did not have regard to the fact that prior to 1 April 2013 many claimants would be proceeding by reference to conditional fee agreements (CPA) entered into with their lawyers. That meant that if the claimant was successful they could be awarded up to a hundred per cent by way of success fee by way of uplift to their lawyer's normal fee and that would continue to be recoverable if the CFA was made before the relevant date under section 44(6) of the 2012 Act. An extra 10 per cent, it was said, would thus involve an unfair windfall for those claimants or their lawyers falling into this category.
17. The principal argument at this hearing, being the argument which presumably prompted the reasoning of the judge in the present case, was summarised in this way in the second judgment of the court handed down on 10 October 2012:

"31. Turning now to ABI's main argument, it has three steps. The first step is that the 10% increase in damages was intended as a quid pro quo for successful CFA claimants in return for depriving them of the right to recover the success fee as part of their costs. For the reasons discussed above, we accept that contention. The second step in ABI's argument is that it would therefore be wrong to permit CFA claimants who are entitled to recover the success fee to benefit from the 10% increase. On the face of it, at any rate, it is hard to challenge that contention: such claimants would have the penny and the bun. The third step is that this 'misalignment' can easily be met by reversing the conclusion reached in para 19, and adding a qualification to our conclusion in para 20, of our earlier judgment, namely that it would not apply to claimants who had entered into a CFA before 1 April 2013. Again, such an amendment, which appears at least on its face to be simple and clear, would seem to dispose of the misalignment."

18. The Court of Appeal accepted that argument with the refinement that the exclusion from the 10 per cent uplift should extend to all those claimants falling within the ambit of section 44(6) of the 2012 Act (see paragraph 40). But in all other respects the Court of Appeal confirmed the principle enunciated in its first judgment (see paragraphs 41 and 50 of the second judgment).

Decision

19. As I have said, the claimant, Mr Summers, has at all relevant times been legally aided and he does not come within section 44(6) of the 2012 Act. It is clear from the judge's approach that the judge had nevertheless considered that a further exception was available to him to apply, as a matter of discretion, in the withholding of the availability of the 10 per cent uplift. He had taken the view, as he had explained in paragraph 14 of his judgment, that if the exception by reference to section 44(6) was to be justified on the footing that successful pre-1 April 2013 CFA claimants had not been deprived of the right to recover a success fee requiring any compensation, then by parity of reasoning there was no justification for a legally aided claimant receiving a 10 per cent uplift.
20. With all respect to the judge, I do not think that this reasoning was open to him. In my view, the judge had been required to include the 10 per cent uplift in the award of general damages. Simmons v Castle bound him to do so.
21. The first point which I would note is that the judge apparently thought that this was a matter of "discretion" and that "on balance" he was not persuaded to exercise his discretion in this case in favour of the increase. But on the judge's approach there can hardly be a principled basis under the guise of "discretion" for permitting some legally aided claimants to receive the 10 per cent uplift of general damages and others not. Either they should all get it or they should all not get it. Were it otherwise there would be potentially complete uncertainty and inconsistency in awards of the courts throughout England and Wales. There also potentially would be difficulties in calculating and determining the form and amount of Part 36 offers or without prejudice proposals of settlement. We were in fact told in the appellant's written grounds that in other awards in other courts judges were including the 10 per cent uplift of general damages in favour of legally aided claimants.
22. The second point, related to the first point and in my view conclusive, is that such a step in any event is, quite simply, precluded by the two decisions of the Court of Appeal in Simmons v Castle itself. The court's decision had been designed, as was stated by it in terms, to produce "simplicity and clarity". It was acknowledged that the principle advanced would not achieve "perfect justice in every case". It was acknowledged that what were called "conventional" claimants might be advantaged. But the need for clarity and consistency overrode such considerations. The only exception that the Court of Appeal was prepared to sanction was that of cases falling within section 44(6) of the 2012 Act; and in making such exception the court also made clear that it did so by way of, as it were, transitional provision. It would, in my opinion, be wholly contrary both to the reasoning of and to the intent behind this Court of Appeal decision for trial judges then to introduce, by way of purported exercise of discretion, a yet further potential (and long-term) exception or exceptions.
23. Furthermore, in my view it is inconceivable that the Court of Appeal or the professional bodies appearing before it on the second occasion would have overlooked the significant class of legally aided claimants had there been any notion that there should or might be some further exception applicable to that class. There is nothing in the Jackson report itself, so far as I am aware, which raises such a proposal. On the contrary, the recommendation in the report was, without qualification, that the uplift of 10 per cent for general damages should be "across the board". Indeed in paragraph 5.6 of Chapter 10 of his final report, Sir Rupert had acknowledged that the 10 per cent uplift would potentially produce a "windfall" for what were called "conventional" claimants. This point is expressly alluded to by the Court of Appeal in Simmons v Castle (see paragraphs 13, 27 and 41 - 44 of the second judgment) and the point as made by Sir Rupert was accepted. It was accepted as part of the overall package as Sir Rupert had recommended: in circumstances where, as it had been pointed out, such damages were in any event generally considered to be on the low side. The judge's approach in the present case is wholly inconsistent with these passages and with the treatment of "conventional" claimants.
24. Yet further, in the current 13th Edition of the Judicial College Guidelines for the Assessment of General Damages In Personal Injury Cases there is also no suggestion whatsoever of there being potentially available some exception for legally aided claimants. On the contrary, in the Foreword by Jackson LJ himself, it is contemplated that quite soon there will be very few section 44(6) cases left and that the need to put the 10 per cent uplift in bold type in the guidelines and the need to include in the guidelines the "old" figures at all would soon become unnecessary: as the uplift would then, in the words of Jackson LJ, have "ceased to be a matter for separate discussion".
25. I also note that Kemp and Kemp on Damages at 1-019, after citing the relevant paragraphs of Simmons v Castle, comments that the 10 per cent uplift for the specified categories of cases would apply to all (italics in the text itself) cases unless the section 44(6) exception applied. There is, and rightly so, no mention in Kemp and Kemp of any other available exception by reference to legally aided claimants or otherwise.

Conclusion

26. In my judgment, therefore, and for these reasons, this appeal must succeed. The claimant was entitled as of right to an award of general damages including the 10 per cent uplift and the judge had no discretion to depart from that. The figure of £27,500 awarded by the judge has to be increased accordingly. Allowing also for interest, this means that the total judgment sum should have been, and should be, in the amount of £46,759.30. I would, for my part, allow the appeal accordingly.
27. I would deal with the issue of the costs of this appeal by further decision in the light of written submissions.
28. SIR TIMOTHY LLOYD: I agree. We do not know in detail how the matter proceeded before the learned judge below on the question of the 10 per cent uplift. We can see from his judgment (which is in all other respects, if I may say so, entirely full, careful and well addressed to the relevant issues) that he was well experienced in this field. What we do not know is what submissions he had and what reference was made before him to the actual text of Simmons v Castle No. 2. But, like my Lord, I do find it somewhat surprising that in the light of the passages from Simmons v Castle No. 2, which my Lord has cited and in particular paragraphs 41 to 44, that the judge should have expressed himself in the way that he did in paragraph 14 of his judgment as regards treating it as a matter of discretion.
29. I agree that it is not a matter of discretion and that it is apparent, and I feel sure would have been apparent to the learned judge below if he had focused on those particular passages in Simmons v Castle No. 2, that the claimant in the present case was entitled as ofof right to the 10 per cent uplift and accordingly I agree the appeal should be allowed with the result that my Lord has set out.