NO DISCRETION TO DISALLOW SIMMONS V CASTLE UPLIFT

profile_PI_Bronia_Hartley1 By Bronia Hartley

Summers v Bundy [2016] EWCA Civ 126

A clinical negligence Claimant appealed against a decision that he was not entitled to a 10% uplift in an award of general damages, as required by Simmons v Castle [2012] EWCA Civ 1039. [2013] 1 W. L. R. 1239.

The Appellant had been legally aided. The judge indicated that he had discretion over whether to grant an uplift.  Citing the fact that the purpose of the 10% increase was to compensate those claimants who had to pay their lawyers a proportion of their general damages following the removal of the recoverability of success fees from defendants, the judge took the view that the Appellant was not entitled to the additional 10%.

The appeal was allowed. It was held that the judge’s reasoning had not been open to him.  He was required by Simmons v Castle to include the 10% uplift and this was not a matter for his discretion.  The decision in Simmons v Castle was designed to produce simplicity, clarity and consistency.  It was recognised that it would not achieve perfect justice in every case.  The only exception sanctioned by the Court of Appeal was cases falling within s.44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (cases funded by way of a conditional fee agreement which provides for a success fee entered into on or before 1st April 2013).

It follows that even if the uplift will produce a windfall for a “conventional claimant”, whose case is funded by way of before-the-event insurance or legal aid for example, there is no discretion to depart from the 10% uplift.

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