Or Simmons v Castle round two

Simmons v Castle [2012] EWCA Civ 1288

As you may know, the original Court of Appeal decision in Simmons v Castle on the 10% uplift in general damages (our report here) was revisited after representations by the ABI and APIL.

I’m not sure that the revised judgment has made things any more workable, but it has clarified some issues relevant to housing.

First, general damages for “four types of damage in relation to both tort and contract cases, namely “pain and suffering and loss of amenity”., “physical inconvenience and discomfort”, “social discredit”, and “mental distress”” are are to be given the 10% uplift. (para 48)

The original judgment did not address contract cases, apparently excluding general damages for housing disrepair and elements of unlawful eviction. It would appear that general damages in such cases now should receive the 10% uplift.

Quite what this does conceptually to the Wallace/Shine assessment of quantum as a notional percentage of rent is another matter . The rent hasn’t gone up 10% but perhaps the discomfort and distress has been recognised as being 10% worse… And is this 10% on each component, or a Shine assessment with 10% added to the total?

Then when does the claimant get this uplift? The decision appears to be that all relevant claims where an award of damages is made on or after 1 April 2013 will get the 10%, except where the claim was funded under a CFA signed before 1 April.

Thus a legal aid or self funded Claimant whose trial was on 1 April would get the 10%, while a CFA funded claimant with a trial on the same day, wouldn’t get it, if the CFA was dated before 1 April.

Meanwhile, when considering settlement of cases that would otherwise come to trial after 1 April 2013, (as long as not on a CFA), should the 10% be a factor in negotiations? My view is that it should, as settlement is in the context of likely damages at trial.

There are also potential issues on advising CFA clients particularly as 1 April draws near. Would it be worth waiting and signing the CFA after 1 April? On the one hand, there is the potential 10% uplift in damages. On the other hand, there is the non-recoverability of the success fee, which will come out of the client’s damages. Unlike PI, there is, as yet, no one way qualified costs shifting for housing or judicial review claims, thus a costs risk for the client where ATE is no longer recoverable, from 1 April for new CFAs. Again unlike PI, there is, as yet, no ceiling on the amount of the damages that can be taken as a success fee in housing claims (in PI the caps is 25% of damages).

While in the average housing disrepair or unlawful eviction claim, it is likely that the client will be in a better position signing a CFA before 1 April 2013, how to explain and quantify these considerations for the client, who may well know about the 10% uplift in damages?

I rather suspect it is going to take a while for the fall out of this decision to subside…