In the case of Simmons v Castle [2012] EWCA Civ 1039 (a personal injury case) the Lord Chief Justice took the opportunity to announce that after 1 April 2013, general damages in tortious claims would increase by 10%. This is following the recommendations by Lord Justice Jackson in his review of civil litigation costs.

The increase includes damages for the following:

  • Pain, suffering and loss of amenity in respect of personal injury
  • Nuisance
  • Defamation
  • All other torts which cause suffering, inconvenience or distress to individuals

This increase is being implemented by the judiciary, rather than by legislation. The Master of the Rolls stated that there was a “clear understanding” by the legislature in drafting the new Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) – which comes into force on 1 April 2013 – that the judiciary would give effect to this rise in damages.

This forms part of the “coherent package of reforms” recommended by Lord Justice Jackson  which is being enacted by LASPO, having received unanimous support by the Judicial Executive Board and the Government following a consultation exercise.

The Lord Chief Justice drew attention to Lord Diplock’s comments in Wright v British Railways Board [1983] 2 AC 773 that the Court of Appeal is “generally speaking the tribunal best qualified to set guidelines for judges trying such actions” particularly given the “inescapably artificial and conventional nature of the assessment of damages for non-economic loss”.

The Lord Chief Justice, also drawing on Lord Woolf MR’s comments in Heil v Rankin [2000] EWCA Civ 84, concluded that “this court has not merely the power, but a positive duty, to monitor, and where appropriate to alter, the guideline rates for general damages in personal injury actions“. He went on to state

“the increase in general damages we are laying down here extends to tort claims other than personal injury actions… to general damages in all tort cases.”

 The judgment states that

“[i]t would therefore be little short of a breach of faith for the judiciary not to give effect to the 10% increase in damages recommended by Sir Rupert“.

The 10% increase will apply to all cases where judgment is given after 1 April 2013. The Lord Chief Justice noted that they were announcing this measure eight months ahead of time to give “proper prospective warning” to parties in, or contemplating, litigation.

Other measures recommended by Lord Justice Jackson, which are to be implemented under LASPO, include that success fees and ATE premiums under a Conditional Fee Agreements are to be paid out of the Claimant’s damages rather than by the losing defendant – which is intended to be mitigated by this increase in the amount of damages – and changes to the Part 36 regime.

The current threshold of libel damages was explored at some length by Bean J in the recent case of KC v MGN Limited [2012] EWHC 483 (QB). He noted that the Court of Appeal in John v MGN [1997] QB 586 said that the sum awarded must:-  “….compensate [a claimant] for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused” In Cleese v Associated Newspapers [2004] EMLR 3 Eady J noted that “a fundamental point always to be remembered is that the purpose of such damages… is compensatory and not punitive.”.

In KC, Bean J noted that in Al-Amoudi v Kifle[2011] EWHC 2037 (QB) in July 2011 Judge Parkes QC said that the practical ceiling for libel damages was perhaps £230-£240,000.

Taking this into account it would seem the practical effect of these new guideline on damages would be to raise the ceiling of damages which can be awarded to a libel claimant to around £264,000.

Kim Waite is an associate at at media law firm RPC.