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Giving 110%

By J

We wouldn’t usually cover a PI case here on NL, but Simmons v Castle [2012] EWCA Civ 1039 has – and is intended to have – implications far beyond PI. The case itself was an appeal arising out of a road traffic accident. The Recorder had awarded damages which, I presume, the appellant thought were too low. Once permission to appeal was obtained, a settlement was reached which provided for the possibility of a higher award of damages in the event that certain specified conditions were met.

The Court of Appeal had no difficulty approving a settlement , but took the opportunity to make some general statements about the approach to general damages. It was noted that the Jackson Report had recommended that general damages be increased by 10%, to reflect the restrictions on the recovery of success fees, ATE insurance, etc, in CFA cases. Those reforms (but not the 10% uplift) were largely contained in Part 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

The Court noted that the reforms in the Jackson Review needed to be considered as a coherent whole and, accordingly, ordered that general damages awards should increase by 10% for any judgment delivered after April 1, 2013. Whilst this was a PI case, the court noted that this should apply to all claims in, inter alia, nuisance or tort, if the tort causes suffering, distress or inconvenience to any individual.

I understand why this is being done, but I can’t help thinking the CA has made a bit of a mess of this. Presumably it includes statutory torts (e.g. unlawful eviction and harassment). But what about disrepair if it’s only dealt with as part of s.11, LTA 1985? That isn’t a tort, but a contractual claim. Does the uplift apply? If not, why not?



J is a barrister. He considers housing law to be the single greatest kind of law known to humankind and finds it very odd that so few people share this view.


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