QC asks: are you brave enough to go to court to get your extra 10% damages?

10% target: is it worth the risk of going to court?

The 10% increase in damages will get “lost in the wash” in negotiations and it will be a brave litigator who advises a client to go to court to gain it, a leading QC has warned.

Nigel Poole QC of Kings Chambers also predicted that the issue of a part 36 offer only beaten because of the uprating will require determination by the Court of Appeal.

The Court of Appeal’s ruling in Simmons v Castle has already been criticised for the confusion it could cause.

Mr Poole said there is always a possible range of general damages for pain, suffering and loss of amenity (PSLA), and “it would be a brave litigator who advises a client that they can be sure within a 10% margin what award of general damages for PSLA the court will make”.

He continued: “In other words, the 10% increase will surely get ‘lost in the wash’ in negotiations. Most claims for damages for PSLA are for less than £10,000. Would a claimant’s solicitor be certain that a claimant will recover £8,800 rather than £8,000, or £2,200 rather than £2,000? I suggest not.”

There has been an overall 28% increase in the Judicial Studies Board guidelines for damages for PSLA between 2002 and 2010, Mr Poole noted. “Thus, general damages increase over time in any event. The most likely mechanism by which the decision will have an impact is when the next edition of the JSB guidelines comes out. The increases in guideline figures ought to be for more than 10% when compared with the current edition, reflecting both the usual increase plus the decision in Simmons v Castle.”

On part 36 offers, Mr Poole said the court will “surely” look at whether it would have been better for the claimant to have accepted the offer at the time when the law was what it was.

“If a claimant beats an offer purely because of the 10% increase, then I suggest that the court would be entitled to consider whether the offer would have been beaten without the 10% increase and to make an award of costs accordingly. Otherwise the defendant would be penalised in costs having made an offer which ought to have been accepted at the time when the offer was made.

“This will be an issue which will vex the court in very few cases, I suggest, but may nevertheless give rise to an appellate decision or two.”

He also advised against putting of settlements until after 1 April 2013, when the increase takes effect. “Defendant representatives might seek to avoid that by making offers which expire before that date. In any event, the increase of 10% is, as I have already suggested, marginal. The courts will be alert to deliberate attempts to delay proceedings. Claimants want their cases resolved and may not think that the reward of waiting after 1 April 2013 is worth it (if they notice any reward at all).”