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Beckford: Clarity as to 10% uplift on general damages in the Tribunal?
Olivia-Faith Dobbie comments on why the Simmons v Castle saga continues in Beckford.
In Simmons v Castle  EWCA Civ 1039, the Court of Appeal (CA) declared that:
“…with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously…”
The primary motivation for this increase was the fact that from 1 April 2013, a claimant pursuing their claim under a CFA would no longer have the right to recover success fees from the defendant if they won. (An ancillary factor was that damages were deemed to be somewhat low and in need of uplift to reflect modern-day value). Of course, recoverability of success fees is not particularly relevant to claims in the employment tribunal, because costs are rarely awarded. So, does the 10% uplift apply to general damages awarded in discrimination claims in the employment tribunal?
There are now at least five EAT-level decisions on this issue and they pull in different directions. In Beckford v London Borough of Southwark UKEAT/0210/14, handed down last week, the President of the EAT discusses those inconsistent decisions and provides some comfort to claimants.
The decision in Beckford
In Beckford, the EAT held that the 10% uplift on general damages should apply to cases in the employment tribunal, thus reaching the same conclusion as the differently-constituted EAT panels in Sash Window Workshop v King UKEAT/0058/14 and Cadogan Hotels v Ozog UKEAT/0001/14. Hence, at present, there are three EAT-level cases which state the uplift applies. In addition to those cases is of course the Presidential Guidance (from the President of the ET, not EAT) which specifically states that the uplift applies.
In contrast to these sources of authority is the decision in De Souza v Vinci Construction UK Limited UKEAT/0328/14 and a considered but obiter view in the case of Chawla v Hewlett Packard UKEAT/0280/13. In both cases it was stated that the 10% uplift would not apply (on the basis that the primary underlying rationale for the uplift was absent).
The reasoning in Beckford approaches the matter differently. It focuses on the need for consistency between awards in different legal forums. Hence, it did not matter that the primary purpose of the uplift was irrelevant in most tribunal cases; what mattered was that tribunals awarded comparable damages to those awarded in the civil court for the same sort of damage. It was also emphasised that the discussion in Simmons was intended to apply across the board. The decision was not confined to specific jurisdictions or to cases which would previously have entitled the claimant to recover the success fee from the other side.
It is understood that an appeal in the De Souza case was heard by the CA earlier this month and judgment is awaited. Sash Windows has also been appealed to the CA and the hearing is set for February 2016. Hence, there is only a short wait until we have an answer from a higher authority. Until then, the point is open to argument, but one might expect tribunals to be more inclined to apply the uplift now that the President of the EAT has endorsed it.
Claimants may feel that they are unclear on what they can recover and respondents may similarly fear the unpredictability of how great their liability for general damages may be. However, until the CA has expressed its view on this specific uplift, the position will remain uncertain.
In the interim (and irrespective of the position in respect to any Simmons uplift) parties ought not to forget the guidance given by the then President of the EAT in the case of Bullimore v Pothecary Witham Weld Solicitors & Anor  IRLR 18 to the effect that tribunals should not slavishly follow the guidelines in Vento and Da’Bell and should uplift awards for inflation. This authority is rarely relied upon by claimants. Perhaps the reason for this is that the uplift is not specified as a fixed factor or percentage. However, in principle, awards should reflect today’s money, and either side in litigation can advance different arguments on the extent of any such uplift since the decision in Da’Bell.
Accordingly, even if the 10% Simmons uplift is held to be inapplicable in tribunal claims, claimants and respondents alike should consider the prospect of an uplift for inflation when assessing the likely damages.