20 September 2012Print This Post

APIL urges Court of Appeal to hold firm over damages increase

April 2013: court's approach has much to recommend it, says APIL

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The Court of Appeal’s decision to increase general damages by 10% from next April is “a simple, workable solution that everyone can understand and operate” and should not be altered, the Association of Personal Injury Lawyers (APIL) has told the court.

The court has reopened its ruling in Simmons v Castle after an application by the Association of British Insurers (ABI), which argued that it should not apply to cases which begin before 1 April because they would still benefit from the recoverability of success fees and after-the-event insurance.

APIL and the Personal Injuries Bar Association have both taken up the court’s offer to make submissions ahead of a pre-trial hearing next Tuesday, although the latter declined to release its skeleton argument.

APIL’s skeleton – drafted by Grahame Aldous QC of 9 Gough Square – said the appeal court’s approach “has much to recommend it that would be lost if the proposed variation were overlaid onto it”.

It noted that even with a 10% increase in damages for pain, suffering and loss of amenity, the level of damages will “still be modest rather than high”, and that the increase will apply across the board – not just to those operating under conditional fee agreements. It quoted Lord Justice Jackson's report when it said that “the level of damages in England and Wales is not high at the moment. The abolition of 'recoverability' would be an opportune moment for raising the level of such damages generally”.

APIL argued that the ABI has made “unverified and untested assertions” as to the financial effect of a 10% increase. “When preparing his report, Jackson LJ invited and considered submissions on the potential financial impact of his changes. Whilst that was appropriate at that stage, it is not appropriate at the current stage of implementation to attempt to base a judicial ruling on such untested assertions. To do so risks re-opening not just the judgment of 26 July 2012, but the Jackson report and the conclusions it reached.

“Just as one illustration of the problem, the assertions as to the financial effect of the ruling appear to make no allowance for the effect of the 10% increase that would be enjoyed by non-CFA claimants in any event at whatever time the change was introduced, and which was undoubtedly foreseen and intended by Jackson LJ.”

APIL also suggested that an alternative approach ran the risk of triggering satellite litigation over the exact circumstances in which a 10% uplift applies. “Only a very straightforward and transparent change, such as that announced on 26 July 2012, will avoid that risk.”

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