Summers (Claimant/Appellant) v Bundy
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis,SIR TIMOTHY LLOYD |
| Judgment Date | 11 February 2016 |
| Neutral Citation | [2016] EWCA Civ 126 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 February 2016 |
| Docket Number | B3/2015/2397 |
[2016] EWCA Civ 126
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COMBINED COURT CENTRE
(HIS HONOUR JUDGE MARK GARGAN)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Davis
Sir Timothy Lloyd
B3/2015/2397
The Claimant/Appellant did not appear (but provided written submissions by Atherton Godfrey, solicitors)
The Defendant/Respondent did not appear and was not represented
Introduction
This appeal, brought by leave of Jackson LJ, raises a short point as to the award of general damages for pain, suffering and loss of amenity in the context of a clinical negligence claim.
The point is this. The judge in assessing damages took the view that whether or not to award a 10 per cent uplift of the award of general damages following upon the decisions of the Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039; [2012] EWCA Civ 1288; [2013] 1 All ER 334 was a matter for his discretion. In the case before him, the claimant, Mr Summers, was at all relevant times legally aided. In such circumstances, the judge took the view that he should not be awarded any 10 per cent uplift of his general damages. The question arising is whether the judge was justified in so concluding.
The appeal comes before us in somewhat unusual terms procedurally. Although this was a clinical negligence action, the defendant, Dr Bundy, has taken no part and has not been represented in the proceedings at any stage. Whether this claim against him has in fact been notified to any insurers is not known to us. At all events, judgment was entered against the defendant in default and the assessment of damages was thereafter conducted in circumstances where he again was neither present nor represented. That has continued to be the position on this appeal.
As for the claimant, he had been legally represented throughout. He has put in detailed professionally and carefully drafted grounds of appeal with a skeleton argument in support.
When the application for permission to appeal was made, it came before Jackson LJ on the papers. 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.
Background facts
In view of the issue raised on this appeal, the background facts need only the briefest summary.
On 30 December 2010, the claimant attended the Accident & Emergency Department at Doncaster Royal Infirmary. He was seen by the defendant, who was not an employee of the hospital but a general practitioner providing support. Unfortunately, the defendant failed to investigate whether or not the claimant was suffering from deep vein thrombosis. It turned out that he had been so suffering. This progressed and a pulmonary embolism, having a marked impact on his health, also developed.
The course of the proceedings
At all relevant times, the claimant has been legally aided. His claim form was issued on 17 December 2013 against the defendant. The personal injury alleged was properly particularised. Damages in excess of £100,000 were claimed. The claim was assigned to the multi-track. Judgment in default was entered on 1 May 2014, with damages to be assessed.
The assessment of damages came before Judge Gargan, sitting in the Sheffield County Court, on 8 July 2015. The claimant was represented by counsel at the hearing. The claimant gave evidence himself and also adduced a lengthy medical report.
The judge assessed the evidence fully and carefully. When considering the award for pain, suffering and loss of amenity he had regard to awards in four other cases, suggested to be comparable, put before him. He concluded that the right award in the circumstances of the case for pain, suffering and loss of amenity was £27,500. Having so decided, the judge then said this in the course of paragraph 14 of his judgment:
"I am asked to consider whether or not there should be a 10 per cent uplift. I am advised that whether or not that should be granted to a legally aided party is a discretionary matter. It seems to me that when considering whether to exercise that discretion I should take into account the following. The purpose of the 10 per cent increase was at this stage to compensate those claimants who had to pay the CFA uplift to their lawyers out of their general damages, the right to claim that CFA uplift from the defendant no longer being possible given the move to qualified one way cost shifting under the Jackson reforms. For that reason those who remain on old style CFAs who are able to get their uplift from the defendant are not entitled to the 10 per cent uplift. Because the claimant in this case is 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 who is not getting the benefit of saving the uplift in a case of this nature will [sic] give him a windfall where he is not having to pay his solicitor. So on balance I am not persuaded to exercise my discretion in favour of that increase. So damages for pain, suffering and loss of amenity at £27,500."
It is rather unclear why the judge said that he was "asked to consider" whether there should be a 10 per cent uplift. The position on behalf of the claimant has, as I understand it, always been that the claimant was positively entitled to such an uplift. It is also not entirely clear on what basis the judge said that he was "advised" that this was a discretionary matter.
Be that as it may, the total award, including damages for the claimant's loss of prospects in the employment market and also including interest, was £43,929 with costs.
As is well known to all those specialising in this field, the consideration of a 10 per cent uplift for general damages (in consequence of the recommendations made to that effect in the final report on civil litigation costs by Sir Rupert Jackson, which were widely consulted upon) was undertaken by the Court of Appeal in the above cited case of Simmons v Castle. This was prior to the coming into force of the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("the 2012 Act").
The first judgment of the court (comprising the Lord Chief Justice, the Master of the Rolls and the Vice President of the Court of Appeal, Civil Division) was given on 26 July 2012. It set out the background and context in full. I need not restate it. The court indicated that it was "laying down a principle" to take effect in 8 months' time (paragraph 13). It noted that the 2012 Act was enacted in the relevant respects on the footing that the 10 per cent increase as recommended by Sir Rupert would be "formally adopted by the judiciary" (paragraph 15). It concluded that the increase should "apply to all cases where judgment is given after 1 April 2013". What the court said in conclusion was this:
"19. The only remaining question is precisely how the increase should be applied. We have concluded that it should apply to all cases where judgment is given...
To continue reading
Request your trial