What is more, the Judicial College accepts that in jurisdictions where the Simmons uplift is not recognised, for example, pre-uplift figures will remain relevant to practitioners. In short, a 10% uplift would only apply in a mesothelioma claim if it proceeded on a different (non-CFA) funding basis. exempt from the abolition of recoverable ‘success fees’. ‘… the number is now insufficient to justify the inclusion of both figures’.Īs mentioned above, the JC Guidelines still provide pre-uplift figures in bracket 6(C)(a), for victims of mesothelioma, whose cases are dealt with under pre-LASPO CFAs, i.e. When drafting the 16 th edition, the editorial team formed the view that there are now likely to be ‘vanishingly few’ ongoing cases in which pre-uplift figures will be relevant, to the extent that: The ‘success fee’ essentially became a costs-related loss for claimants to meet out of their damages. Primarily, the 10% uplift has served as a means of compensating personal injury claimants for ‘success fees’, charged by solicitors to their clients under the terms of a CFA, which ceased to be recoverable from losing opponents post-LASPO. The uplift is rooted in the case of Simmons v Castle EWCA Civ 1288, in which the Court of Appeal determined that awards of general damages should be increased by 10% in all personal injury cases where judgment is given after 1 April 2013, save for when s.44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) applies – where claimants have entered into relevant conditional fee agreements (CFA) prior to 1 April 2013. LEAVING THE PRE-UPLIFT FIGURES (ALMOST COMPLETELY) BEHINDįor the first time in the 16 th edition of the JC Guidelines, the decision has been made to only include uplifted figures for general damages (with the exception of damages for mesothelioma). In such instances, the bracket figures have simply been uplifted for inflation.Īs in previous editions, many of the figures have been rounded up or down to provide sensible and realistic brackets, within which awards for general damages comfortably fall. Interestingly, the editorial team observed ‘remarkably few’ reported case decisions on damages since the 15 th edition, with some injuries benefitting from no recent decisions. Spiking inflation in 2022, which has frequently made headline news, was not considered by the editorial team on this occasion. Steady, indeed, as it closely mirrors the RPI increase of 7% between May 2017 and June 2019, which underpinned the 15 th edition figures. They also reflect inflationary changes realised during the editorial period, which means that it is commonplace for figures to increase with time.Īs at September 2021, the general increase in retail price index (RPI) since the release of the 15 th edition was 6.56% and the persistent upward trend was described as ‘slow but steady’. Successive editions of the Guidelines, with the 16 th edition being no exception, are a distillation of new court decisions on quantum and changes in policy. It has been two years since the publication of the 15 th edition of the Guidelines and approaching 30 years since the 1 st edition of the Guidelines (formerly the Judicial Studies Board Guidelines (JSB Guidelines)] was published. HOW DO SUCCESSIVE EDITIONS OF THE GUIDELINES DIFFER? That consideration remains whether those symptoms have been endured over merely a matter of months or for a year or longer.”’Īccordingly, the facts of the case must be regarded as the ultimate determinative factor in any award of damages. It is a most dreadful terminal disease with extremely painful and distressing symptoms. I remind myself of the point made by David Foskett QC sitting as a High Court Judge: “… it is an invidious exercise to draw fine distinctions between the suffering of victims of mesothelioma. ‘Turning myself into a jury, my starting point has to be the Guidelines - I can depart from such, but only with justification. Justice Holland noted, at paragraph 7 of his judgment in Cameron v Vinters Defence Systems Ltd EWHC 2267, that the Guidelines provide the starting point, but judges may deviate from this position, providing that said deviation can be justified: We must reiterate that the status of the Guidelines is only that of guidance – they are not enshrined by law and can be departed from if the circumstances of the case so require.Īs evidence of this, Mr. In this feature article, therefore, we seek to compare the newest edition against the previous (15 th) edition by mirroring the format employed in issues 20 ( here), 114 ( here), 201 ( here) and 297 ( here) of BC Disease News.
On Monday, the 16 th edition of the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (JC Guidelines) was published.