The Dekagram: 19th June 2023

Members of the team have just spent an enjoyable few days at the PEOPIL conference in Thessaloniki, a Greek city of many architectural, archaeological and historical wonders, quite apart from boasting the most astounding tomatoes and cucumbers we’ve tasted for some considerable time. Whilst some practitioners entertained the conference with presentations in English and Greek, others explored the birthplace of Alexander the Great and stood in the very spot where Philip II of Macedonia was assassinated as he attended the theatre, leaving others to do a spot of scuba diving accident reconstruction. The upshot, of course, is that this week’s Dekagram, whilst appropriately Greekly named, is rather shorter than usual, although it does concern an intriguing recent decision of no less a dikastirio than the Coventry County Court. Normal service will be resumed next week.

Crikey! in Coventry

A recent decision by Recorder Jack sitting in Coventry County Court, Blair v Jaber [2023] EW Misc 3 (CC), raises some interesting questions about how (or whether) to adjust the Judicial College Guidelines to take account of inflation. In that case the Claimants claimed damages for personal injuries arising out of a road traffic accident which occurred on 28^th October 2020. Mr Blair had sustained a broken clavicle, whilst Mrs Blair had suffered a laceration to her left shin, when the taxi they were travelling in, which was being driven by Mr Jaber, came to a sudden halt, throwing them forwards in their seats (they were not wearing seatbelts at the time). The Recorder applied a 25% deduction on account of contributory negligence in the light of the guidance in Froom v Butcher [1976] 1 QB 286.

In dealing with general damages, and bearing in mind that the Judicial College Guidelines were 11 months old at the time of trial, the Recorder said this:

I first make a general point about the Judicial College Guidelines. The current edition was published on 11^th April 2022, nearly a year ago. The figures in this latest edition were probably finalised earlier. Since then, we have had inflation such as has not been seen since the 1970s. The Office of National Statistics figure for January 2023 released on 15^th February 2023 showed the Retail Price Index at 13.4% per annum. The source of that is www.ons.gov.uk/economy/inflationandpriceindices, accessed on 8th March 2023.[i]

The Judicial College Guidelines, unlike the Northern Irish Green Book, do not take future inflation into account. I need to consider whether the figures in the guidelines should be increased to take the unexpected and massive increase in inflation into account. Ms Dervin submitted that I should not. That is, she submitted, a matter for the Judicial College to consider. I disagree. The Judicial College Guidelines are just that – guidelines. If there is a change in circumstances between April 2022 and today, that is a matter to take into account when assessing damages. The very substantial drop in the value of money which has taken place since April 2022 is just such a circumstance. Accordingly, the Judicial College figures needs to be increased by, in my judgment, about 12%.

In respect of the First Claimant this gave rise to the following result:

The range suggested by the Judicial College is £5,150 to £12,240. Ms Dervin [for the Defendant] submitted that a figure of £6,000 was appropriate. Ms Feeney [for the Claimant] submitted that £8,500 was right, but she did not, it would seem, add any uplift to the Judicial College figures to reflect inflation.

In my judgment, Ms Dervin’s figure is near the bottom of the range and is too low. Before adjusting the Judicial College figures for inflation, I would award £8,000. With a 12% uplift, that gives £8,960. However, I will limit the award to the £8,500 sought by counsel.

An interesting result. But is it right?

The reference to the Northern Irish Green Book may provide some clue as to what was in the Recorder’s mind. He seems to have considered that because the Guidelines were almost a year old at the time of trial (a year! Imagine!) it was necessary to provide a Northern Irish type uplift to take account of economic fluctuations since that time, as would have been the case had the claim been governed by Northern Irish law. But it was not, and in the author’s experience judges do not apply such uplifts in cases governed by English law, at least not when the Guidelines are but a year old. He did not turn his mind to what benchmark should be used to found any uplift, but plumped for the retail price index, without any explanation as to why. He then went on to apply an uplift of 12%, which is slightly confusing because, on a strict economic approach using the RPI, the appropriate uplift (if an uplift was appropriate at all) was 19%. He then limited the award for general damages to the sum sought by counsel for the Claimant, an uplift of between 6% and 7%.

It is difficult to know quite what happened at trial and particularly in submissions without having been there oneself, but the author finds the approach taken by the Recorder endearingly eccentric, at best. There is no authority for the proposition that the Guidelines should be increased to reflect inflation by reference to the RPI or otherwise or that the judge is bound by the submissions made by counsel for the claimant, presumably in blissful ignorance of the judge’s intentions as regards uplift.

Still, there’s something in the judgment for everyone – uplifts for claimants, binding submissions for defendants – so in that sense the judgment may be said to have been the Judgment of Solomon, satisfying as it does none of the parties involved.

About the Author
Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases. She was appointed a KC in March 2023

[i] Note 1   On the day of the trial, a hard copy of the Judicial College Guidelines was not available. It is apparent from the foreword of Lambert J that the figures for general damages in the 16th Edition are based on prices as at September 2021. The RPI was 308.6 in September 2021 and 367.2 in March 2023: see www.ons.gov.uk/economy/inflationandpriceindices/timeseries/chaw/mm23. This is an increase of 19.0 per cent.