Disrepair: applicability of the Simmons v Castle 10% to damages for disrepair

In Simmons v Castle [2012] EWCA Civ 1039, the Court of Appeal declared that from 1 April 2013, the proper level of damages in all civil claims for (a) pain and suffering, (b) loss of amenity, (c) physical inconvenience and discomfort, (d) social discredit, or (e) mental distress, would be 10% higher than previously, unless the claimant fell within section 44(6) the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). In Khan v Mehmood [2022] EWCA Civ 791; [2022] PLSCS 104 the Court of Appeal confirmed that there was no good reason why the Simmons v Castle uplift should not apply to claims for general damages for disrepair. The respondent commenced his occupation of the property in 2005, but was not a tenant. In March 2011 the appellant granted the respondent a fixed term assured shorthold tenancy of the property, which was renewed in 2012. The respondent subsequently fell into arrears and the landlord issued possession proceedings. In the respondent’s amended defence and counterclaim he admitted that he occupied the property under an assured shorthold tenancy agreement, the first of which begun in March 2011. However, he admitted to being in occupation of the property since 2007. He further admitted to being in arrears of rent, but sought to set off sums awarded under the counterclaim for damages for disrepair. The appellant in her reply to the amended defence and defence to counterclaim admitted that the respondent had occupied the property since 2007, but had entered into a tenancy agreement in March 2011. She denied being in breach of the covenant to repair. At trial the appellant landlord failed to attend. The claim for possession was dismissed and judgment was given on the counterclaim. The award of damages for disrepair was based on a reduction in rent for the period of the respondent’s occupation since 2007. The Simmons v Castle uplift was applied to the award of damages. The appellant landlord appealed to the High Court, but the appeal was dismissed. She subsequently appealed to the Court of Appeal. The appellants argued that the period used in the calculation of the respondent’s award of damages was excessive. The period should have been calculated from 2011, and not 2007. The Court of Appeal agreed. A serious procedural irregularity had occurred. The submissions made of behalf of the respondent at trial were inconsistent with his pleadings and the evidence that his tenancy of the property commenced in March 2011. Of wider interest to practitioners, the appellant additionally argued that the Simmons v Castle uplift should not have been applied to respondent’s award of damages for disrepair. This was on the basis that first, it was not in accordance with the recommendations of Sir Rupert Jackson’s Final Report on Civil Litigation Costs. The Court of Appeal disagreed. Second, the uplift was only applicable to damages calculated by reference to a guideline tariff and not to damages based on a reduction in rent. Reviewing the authorities on the calculation of the quantum of damages for disrepair, the Court of Appeal found that although it was correct that in some types of claims damages were assessed by reference to a tariff, such as in personal injury claims, there was nothing in the judgment in Simmons to suggest that the uplift should only be confined to such cases. Further, the Court of Appeal observed that although using a notational reduction in rent as the starting point for the calculation of damages may, but not invariably, incorporate an adjustment for inflation, that did not justify excluding such damages from the scope of the uplift. Lastly, the purpose of the Simmons v Castle uplift was also to compensate successful claimants, as a class, who had been deprived of the right to recover success fees from defendants under a CFA post-LAPSO. Claimants seeking damages for disrepair who were funding their legal costs by CFA fell squarely within this class. Elizabeth Dwomoh is a barrister at Lamb Chambers