Monday, 3 September 2012

10% Uplift in Damages to be Revisited


As previously blogged, the Court of Appeal announced a 10% uplift in general damages for PSLA from April 2013 in its decision in the case of Simmons-v-Castle. The judgment on the issue was short and to the point, but left many questions unanswered.

The Court of Appeal has now accepted an application by the Association of British Insurers to re-open this case with notice to be given to other specified interested parties - http://www.litigationfutures.com/news/court-appeal-reopens-ruling-10-damages-uplift. One issue which will be addressed is whether the 10% uplift should apply to claims where the Claimant can also recover all their costs including uplifts and the ATE insurance premium from the Defendant. The existing decision contained no directions on transitional arrangements thus allowing some claimants potentially to recover the premium, have all costs paid for by the Defendant, including uplifts, and then to have the uplift in general damages (which is intended by Jackson LJ to compensate Claimants for having to pay their own lawyers uplifts out of damages). 

Clearly the significant changes in civil litigation funding following Lord Justice Jackson's work need to be cohesive and perhaps the Court of Appeal will now give more precise detail on how the change in general damages will be implemented. Part of the difficulty which has arisen surely comes from seeking to use damages, which are intended to be compensatory of an injury, as a means of addressing problematic costs issues.

More to follow when the new judgment is given.

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