In response to an application by the Association of British Insurers, the Court of Appeal has amended its previous guidance that the 10% increase in general damages should apply to all cases where judgment is given after 1 April 2013 (click here for our post on the previous decision). There will now be a carve-out for cases where the claimant has entered into a conditional fee agreement (CFA) before 1 April 2013 and therefore the success fee continues to be recoverable from the defendant: Simmons v Castle [2012] EWCA Civ 1288.

This avoids the potential “double whammy” effect of defendants (and their insurers) having to pay a claimant’s success fee while at the same time being liable for the 10% increase in general damages which was intended to compensate CFA claimants for the loss of recoverable success fees. The 10% increase will apply to all other cases where judgment is given after 1 April 2013, regardless of when the proceedings were started and whether the claimant has the benefit of a CFA.

The Court of Appeal has also confirmed that the 10% increase will apply to all civil claims for non-pecuniary loss (i.e. pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit, mental distress, or loss of society of relatives) whether they are brought in contract or tort.