10% UPLIFT IN ALL CASES EXCEPT WHERE THERE IS A RECOVERABLE SUCCESS FEE
Two recent cases, one in the Court of Appeal and one in the Employment Appeal Tribunal, hold that the 10% Simmons v Castle uplift to general damages etc. applies in all cases except where there is a recoverable success fee.
Here it was held in the Court of Appeal to apply to legally-aided clients, who would not suffer the loss of recoverability as they never had it, and in the employment tribunals to recipients of damages for personal injury and/or injury to feelings, who likewise could never have recovered a success fee.
the Court of Appeal held that the 10% uplift on general damages as set out by the Court of Appeal in
is compulsory and not a matter for judicial discretion.
Here the claimant had at all times been legally-aided in a clinical negligence case and the trial judge took the view that he should not receive the 10% uplift as he would not suffer the loss of recoverability of the success fee which the uplift was meant to compensate.
In the two Simmons v Castle cases the Court of Appeal had originally said that the 10% uplift would apply to all cases settled, or where the judgment was given, on or after 1 April 2013, which was the implementation date for most of the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, itself implementing many of the Jackson Reforms, of which this is one.
This original decision was challenged by The Association of British Insurers who pointed out that an across the board increase would mean that claimants with a pre-Jackson Conditional Fee Agreement would get up to a 100% success fee from the paying party and still get the uplift and that that would be an unfair windfall.
The Court of Appeal accepted this contention and thus excluded those claimants who stood to recover a success fee from the paying party.
All other claimants were to get the 10% increase.
Here the judge had considered that a further exception was available to him in relation to a legally-aided client. The Court of Appeal held that he was wrong and that that reasoning was not open to him.
The Court of Appeal pointed out that if there was a discretion some legally-aided clients may get the uplift and some may not and this would lead potentially to “complete uncertainty and inconsistency in awards of the courts throughout England and Wales. There also potentially would be difficulties in calculating and determining the form and amount of Part 36 offers or without prejudice proposals of settlement.” (Paragraph 21).
The Court of Appeal made it clear in forceful terms that the only exception related to claimants with a recoverable success fee and there was no discretion on any court to refuse the 10% uplift in any other type of case.
In paragraph 20 of the original Court of Appeal’s decision in Simmons v Castle it said this:-
“ 20. Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously.”
That general principle was unchanged by the Court of Appeal’s second decision which simply excluded claimants with a recoverable success fee.
Discrimination Claims and Injury to Feelings
The Court of Appeal decision in Summers v Bundy appears to end the controversy as to whether general damages awards in the Employment Tribunal, generally for injury to feelings, attract the 10% uplift.
Following the rationale of Summers v Bundy such cases must now indeed attract the 10% uplift.
There had been different lines of authority with the Employment Appeal Tribunal in
holding that there could be no such uplift as Employment Tribunal claims were not included in the list of specific types of litigation dealt with in the Jackson Report and nor did the issue of loss of recoverability of the success fee apply as there are no recoverable costs in Employment Tribunal cases generally.
Now that the Court of Appeal has said that it is irrelevant that some claimants without Conditional Fee Agreements, such as legally-aided clients, will get a windfall , that must apply to claimants in Employment Tribunal proceedings as well, as the Court of Appeal has said that the only exclusion is in relation to those with recoverable success fees.
Furthermore the precise types of litigation in the Jackson Report are irrelevant – the law is as set out by the Court of Appeal in Simmons v Castle and as clarified in Summers v Bundy.
Other divisions of the Employment Appeal Tribunal had followed this line and said that the 10% uplift was applicable – see
Ozog v Cadogan Hotel Partners Ltd  EqLR 691 EAT and
The Sash Window Workshop Ltd v King  IRLR 348 EAT
The Court of Appeal is just about to hear the appeal in The Sash Window case but it will now be bound by its own decision in Summers v Bundy. Consequently the appeal should be dismissed.
An appeal on the same point in the case of
is due to be heard in December 2016, but again it appears that that is now academic.
On 27 November 2015 the Employment Appeal Tribunal in
Beckford v London Borough of Southwark  IRLR 178
followed the Ozog and Sash Window line of cases and rejected the reasoning in Chawla and thus correctly anticipated the decision of the Court of Appeal in Summers v Bundy.
The Employment Appeal Tribunal arrived at that conclusion by two routes.
Firstly it gave the precise reasoning subsequently used by the Court of Appeal in Summers v Bundy, even referring to the example of a legally-aided client who never stood to gain the recoverability of the success fee and therefore could not lose it, but who would nevertheless get the 10% uplift.
The Employment Appeal Tribunal also relied on the fact that Section 124 (6) of the Equality Act 2010 provides, in similar terms to its predecessors, that
“(6) The amount of compensation which may be awarded under subsection (2)(b) [that is the subsection which permits a Tribunal to order the Respondent to pay compensation to the Complainant] corresponds to the amount which could be awarded by the County Court or the Sheriff under section 119.”
Section 119 (4) provides that:-
“(4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”
Therefore the Equality Act 2010 requires awards to be comparable in the tribunals to those given in the County Court and although that comparability may be broad, it does not allow for one set of awards to be consistently 10% above the other as that would not be “broadly comparable” but “generally 10% different”.
Furthermore the Equality Act 2010 reflects an important aspect of judicial policy, which is that awards made in the tribunals should broadly be coherent with those made in the civil courts. It would not reflect well on a system of justice that the same injury, as it may seem to a member of the public, should be compensated in one regime at a lower level than it would be in another, particularly given that in discrimination cases there is a general principle of effectiveness deriving from European authority which requires the award to be broadly the same.
It is now beyond doubt that all claimants except those who had a recoverable success fee, receive the 10% uplift in all cases where compensation is awarded for general damages etc. as set out by me above.
It is also beyond doubt that the 10% uplift applies to all injury and injury to feelings awards in the Employment Tribunal.
However the Employment Appeal Tribunal’s point about comparability and the need for consistency between awards in the courts and Employment Tribunals is not well made. There is a huge difference. At present costs remain recoverable in the courts whereas in the Employment Tribunals they do not and typically a represented claimant will suffer a 35% deduction from those damages as a contingency fee, permitted by statutory instrument, to their lawyers.