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No judicial discretion over Simmons v Castle uplift, Court of Appeal rules

A circuit judge had no discretion to refuse a 10 per cent uplift to successful legally-aided claimant, because their claim did not fall within the singular Simmons v Castle exception.

Summers v Bundy [2016] EWCA Civ 126 (11 February 2016)

This case arose out of a medical negligence claim, in which the defendant took no part in the proceedings, and was not represented at any stage. Judgment was therefore entered against the defendant in default. The defendant continued not to be represented or participate in the ensuing assessment of damages (para 3). By contrast, the claimant was represented throughout the initial proceedings, funded by legal aid (para 4).

The claimant’s application for appeal came before Jackson LJ who decided that, on the papers, it was “bound to succeed”. However, possibly to save costs, Jackson LJ dispensed with the need for the appellant, or the applicant’s counsel, to attend the Court of Appeal hearing itself (para 5). The Court of Appeal judgment in Summers v Bundy therefore does not refer to pleadings made before the court.

Having decided that the correct award for the claimant’s pain, suffering and loss of amenity was £27,500, HHJ Gargan then considered the 10 per cent uplift. In his judgment, HHJ Gargan stated that: “The purpose of the 10 per cent increase was at this stage to compensate those claimants who had to pay the CFA uplift to their lawyers out of their general damages”. And, because the claimant was legally aided, “I am advised that whether or not that should be granted to a legally aided party is a discretionary matter”. Furthermore, “it seems to me therefore that it would be wrong to penalise the defendant who is not getting the benefit of saving the uplift in a case of this nature will [sic] give him a windfall where he is not having to pay his solicitor.” HHJ Gargan was therefore “not persuaded to exercise my discretion in favour of that increase” (para 10).

Delivering the main judgment in the Court of Appeal, Davis LJ said it was “unclear” why HHJ Gargan had been “asked to consider” whether there should be a 10 per cent uplift. Davis LJ then said: “The position on behalf of the claimant has, as I understand it, always been that the claimant was positively entitled to such an uplift. It is also not entirely clear on what basis the judge said that he was ‘advised’ that this was a discretionary matter.” (para 11).

In relation to whether the claimant’s legal aid status effectively gave the HHJ Gargan the right to deny him the 10 per cent uplift, Davis LJ said: “With all respect to the judge, I do not think that this reasoning was open to him. In my view, the judge had been required to include the 10 per cent uplift in the award of general damages” (para 20). In this case, the claimant case did not fall within the singular exemption to the uplift, as approved by the Court of Appeal in its second Simmons v Castle ruling – conditional fee agreement-based claims, commenced before 1 April 2013 (para 18). Therefore, Davis LJ, continued: “It would, in my opinion, be wholly contrary both to the reasoning of and to the intent behind this Court of Appeal decision for trial judges then to introduce, by way of purported exercise of discretion, a yet further potential (and long-term) exception or exceptions” (para 22)

Reinforcing his point, Davis LJ noted that the Jackson report had stated that the 10 per cent uplift for general damages should be “across the board” (para 23) – even if that uplift would potentially produce a “windfall” for “conventional” claims; that the current 13th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases does not suggest there might potentially be some exceptions for legally-aided claimants (para 24); and that Kemp and Kemp on Damages comments that the 10 per cent uplift for the specified categories of cases would apply to all cases (the publication’s own emphasis) bar the above-mentioned exemption (para 25).

For these reason, the Court of Appeal decided in this case that the claimant’s appeal must succeed. Concluding his judgment, Davis LJ said: “The claimant was entitled as of right to an award of general damages including the 10 per cent uplift and the judge had no discretion to depart from that. The figure of £27,500 awarded by the judge has to be increased accordingly” (para 26).

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