Summers v Bundy: Court of Appeal confirms that ending recoverable success fees means that ten percent more general damages is obligatory

Back in 2009, the Jackson report recommended the ending of recoverable success fee uplifts and, in their place, that the claimant should recover ten percent more by way of general damages. Six years on, it is rather ‘old hat’ to point that these changes were implemented together, applying from 1 April 2013, by the LASPO Act 2012 and by the Court of Appeal’s second decision in Simmons v Castle in October 2012.

The twist in Simmons, however, was that certain claimants would get the 10% as a something of a ‘windfall’; being those who instructed solicitors before 1 April 2013 and who did not use a conditional fee agreement. At the time, we said  that “the general damages increase of ten percent will … will also apply to non-CFA cases concluded after 1 April”; which would include any claims funded by legal aid.

The legal aid point was nevertheless tested last month in Summers v Bundy in the Court of Appeal. Its short judgment confirms that the 10% increase in general damages is not at the discretion of the judge and must be applied to cases that fall within the criteria in Summers. The point is surely now beyond doubt. Lord Justice Davis, in Summers, said that the claimant “was entitled as of right to an award of general damages including the 10 per cent uplift and the judge had no discretion to depart from that”.

This recent case raises a fairly straightforward point concerning the transitional costs arrangements applying to claims concluded after the LASPO Act but with an element of funding arranged before its commencement. In our view, there are many more complex aspects of those transitional arrangements which have yet to be tested in court. We anticipate that test cases on such points are highly likely to emerge in the next weeks and months, as we pass the third anniversary of the implementation of the April 2013 reforms.

This final point is a curious one, perhaps: it was Lord Justice Jackson, the architect of the success fee and general damages reforms, who granted the leave to appeal in the Summers v Bundy case. Well of course he would have, wouldn’t he?

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).


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