CA strikes down judge’s decision not to award 10% Simmons uplift

Uplift: judge could not exercise discretion

Uplift: judge could not exercise discretion

A circuit judge was wrong to believe he had discretion not to apply the post-LASPO 10% uplift in damages, the Court of Appeal has ruled.

His Honour Judge Gargan in Sheffield declined to add the uplift on the basis that the claimant had been legally aided throughout the case.

Permission to appeal in Summers v Bundy [2016] EWCA Civ 126, a clinical negligence case, had been granted by Lord Justice Jackson.

Giving the appeal court’s ruling, Lord Justice Davis said: “There can, for reasons which do not need spelling out, be no judge with a greater knowledge and understanding of modern principles and procedures relating to costs. Jackson LJ took the view, as he stated, that the appeal was ‘bound to succeed’.

“Having taken that view, and with an evident desire to try and save costs, he dispensed with the need for the attendance of the appellant or representation of the appellant by counsel at the hearing of this appeal. Thus the matter comes before us today. Nevertheless, we do of course have to consider for ourselves whether this appeal should succeed.”

HHJ Gargan had awarded £27,500 in damages for pain, suffering and loss of amenity in favour of the claimant over a hospital’s failure to diagnose deep vein thrombosis. He said he had been asked to consider whether there should be a 10% uplift, and decided against given that the claimant was in receipt of legal aid.

“He does not have any uplift to pay to his solicitor from his general damages and it seems to me therefore that it would be wrong to penalise the defendant,” he ruled, drawing an analogy with the Court of Appeal’s second ruling in Simmons which made an exception for conditional fee agreement cases started before 1 April 2013.

Aside from being unclear why the judge thought this was a discretionary matter, 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% uplift in the award of general damages. Simmons v Castle bound him to do so.”

The circuit judge had come to his conclusion not to allow the uplift “on balance”, and Davis LJ said: “There can hardly be a principled basis under the guise of ‘discretion’ for permitting some legally aided claimants to receive the 10% uplift of general damages and others not. Either they should all get it or they should all not get it.

“Were it otherwise there would be potentially complete uncertainty and inconsistency in awards of the courts throughout England and Wales.”

In any case, he continued, such as step was simply precluded by the Court of Appeal’s two rulings in Simmons.

“The court’s decision had been designed, as was stated by it in terms, to produce ‘simplicity and clarity’. It was acknowledged that the principle advanced would not achieve ‘perfect justice in every case’. It was acknowledged that what were called ‘conventional’ claimants might be advantaged. But the need for clarity and consistency overrode such considerations.

“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.

“Furthermore, in my view it is inconceivable that the Court of Appeal or the professional bodies appearing before it on the second occasion would have overlooked the significant class of legally aided claimants had there been any notion that there should or might be some further exception applicable to that class.”

There was also nothing in either the Jackson report or the current edition of the Judicial College guidelines for the assessment of general damages in personal injury cases, to support the judge’s approach, he added.

Sir Timothy Lloyd agreed.

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