In Christopher Simmons v Derek Castle  EWCA Civ 1288, the Court of Appeal amended the guidance given in the earlier judgment of Simmons v Castle  EWCA Civ 1039 by stating that, with effect from 1 April 2013, the proper level of general damages in all civil claims for six specified heads of loss will be 10% higher than previously, unless the claimant falls within section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (the Act).
The original decision to increase the level of general damages in tort cases sought to give effect to the reforms proposed by Lord Justice Jackson in his Final Report on Civil Litigation Costs. Subsequently, the Association of British Insurers (ABI) issued two applications as an interested party, in which it invited the court to reconsider how the 10% increase in general damages should apply to cases where the claimant's funding arrangement for legal costs had been agreed after 1 April 2013. The ABI submitted that if the 10% increase in damages applied to all future tortious claims, then claimants who had entered into a conditional fee agreement (CFA) before 1 April 2013 would receive both the increased damages and recovery of the success fee. This, it was argued, would be contrary to the intention of the Act, as the increase in general damages was implemented in order to assist CFA claimants to meet success fees which they were no longer able to recover from the defendant
.A further interested party, the Personal Injuries Bar Association, lent weight to the additional question of whether the increase should be extended so as to include cases in contract and claims for general damages more widely.
The Court of Appeal accepted the reasoning put forward on both counts and paragraph 20 of the original judgment was amended accordingly. The Court went on to acknowledge that there may be cases where either the cause of action or the nature of the damages is such that it is unclear as to whether the 10% increase ought to apply. It was held that those cases will have to be dealt with on their merits if and when they arise.
This application clearly demonstrates the Court's willingness to accept those amendments sought by leading professional bodies within the sector with a view to reducing future procedural queries.