Following Kennedys' article "Increase in general damages: a double whammy?", yesterday the Court of Appeal considered the challenge to their decision in Simmons v Castle by ABI and PIBA.
After hearing submissions from both sides judgment has been reserved but is expected to be handed down within days.
In July, the Court of Appeal commented that general damages will increase by 10 per cent where judgment is given after 1 April 2013 – whether or not a conditional fee agreement (CFA) is in place and irrespective of when the agreement was signed (Simmons v Castle (26.07.12)). The Court recognised that its decision would not "deliver justice in every case" with the result that the Association of British Insurers (ABI) confirmed it would challenge the ruling. Today, the Court of Appeal heard submissions from the ABI, the Personal Injuries Bar Association (PIBA) and the Association of Personal Injury Lawyers (APIL), with other interested parties, including ourselves, writing in support of the challenge through the ABI.
The ABI and PIBA submitted that the blanket increase in general damages was not what was intended by Lord Justice Jackson and created a discrepancy between self-funded claimants, CFA and ATE funded claimants and parties where Part 36 offers were made in an attempt to settle the matter. There was no objection to the increase in principle provided that it was aligned with the Jackson reforms. There was a desire on the part of the ABI and PIBA for the Court to clarify the position and so prevent satellite litigation. APIL agreed that clarity was required but considered that this could be achieved by maintaining the decision as previously stated.
Whilst the Court considered the need to adjourn and invite further submissions from other interested parties, it reached the decision to proceed in relation to this challenge and to view any further challenges on an individual basis.
We await the Court's decision, which should be delivered shortly in light of the urgency of this issue.