Some may have missed the furore in the Summer over the Court of Appeal’s decision in Simmons v Castle  EWCA Civ 1039 to increase general damages across the board by 10 percent with effect from 1 April 2013. Others may not have realised that it has any implications for employment lawyers. On 10 October ( EWCA Civ 1288), the Court revisited and substantially confirmed its decision – and gave an even clearer indication than it had previously given that the increase will apply in tribunals to injury to feelings awards.
General damages – damages for non-pecuniary loss – are being increased by 10 percent so as to implement one of Sir Rupert Jackson’s recommendations in his report on costs. The increase is the quid pro quo for the abolition of the successful claimant’s right to recover from the defendant a success fee as part of costs where there’s a CFA. Given that employment tribunals have, subject to very limited exceptions, a no costs regime and that CFAs (conditional, as opposed to contingency fee agreements) don’t operate in employment tribunals, it might be thought that the 10 percent increase would not apply. However, in its 10 October decision, the Court of Appeal emphasised that the increase would apply to all cases, whether the claimant had a CFA or not, to all types of claim and to all types of non-pecuniary loss referred to in the relevant chapter of McGregor on Damages, a chapter that expressly refers to injury to feelings awards in discrimination cases.
Anyone who remains sceptical as to whether the Court of Appeal really meant to increase injury to feelings awards in the no costs regime of the employment tribunal should bear in mind that discrimination cases take place in the lots-of-costs regimes of the County Court and High Court too. It is inconceivable that the EAT or Court of Appeal, if asked to adjudicate upon the point, would countenance there being differing levels of award in discrimination cases depending on whether the claims are in tribunal or in court.
It is therefore now clear that injury to feelings awards will be significantly higher as from next April. We’ll have to wait and see just how great the flood is of applications to postpone trials listed for March.