Judicial College Guidelines, 17th edition: it’s all about inflation

Until recently, the 17th edition of the Judicial College Guidelines for the Assessment of General Damages was expected to be published in early April. However, in a surprise development, the hard copy of the new edition has arrived on desks in the last couple of days.

Prior to publication, we were anticipating a significant increase in the Guidelines, based on the historical use of the Retail Price Index (RPI) to uprate them, and the lack of any indication of a policy change ahead of the new release.

As predicted then, the inflationary increase is the headline news. Apart from damages for certain levels of personal injury arising from sexual and/or physical abuse, all brackets for figures in the 17th edition remain the same as in the 16th edition but have been increased by +22%. 

The result is not only some very large increases for the most severe injuries, but also increases for minor injuries that, in the absence of associated rule changes, seem likely to affect the thresholds for the various types of portal claim and fixed recoverable costs.

Also new is what looks to be an explicit instruction that the inflationary adjustment of general damages should be an ongoing process. This means that an increase should be applied to the current date of any award or settlement offer to ensure the figures are up to date. Fortunately, after the sharp inflationary increases over the past two years, we now appear to be in a period of levelling off. According to the most recent Bank of England Monetary Policy Report (February 2024) CPI inflation, which is currently the headline measure of price inflation, “is projected to be 2.3% in two years’ time and 1.9% in three years”. Projections are not routinely made for the RPI measure of inflation, but it seems likely to follow a similar pattern.

The key points at a glance are:

The application of RPI between the respective editions. The JCG editors have used the date the text of the 17th edition was drafted, as opposed to the date of publication. The period between the drafting of the 16th and 17th editions is from September 2021 to August 2023, and the change in RPI over this period is +22%, compared to CPI at +17% over the same period. On the long-mooted question of whether a different inflationary index should be used, a new, separate introductory note on Inflation says, 

“it has always been the practice to use the Retail Prices Index (RPI) … it is the index which will continue to be used unless and until the courts decide otherwise”

A clear acknowledgment of the debate between these indices. The editors rightly shy away from a legal/policy choice between RPI and CPI. However, the prospect of an appeal to determine the matter for the future is noted.

“[We] recognise the existence of alternative indices that may be appropriate. However, it is not for the editorial team … to prescribe a different inflationary index from that which is judicially approved and adopted by the courts dealing with personal injury claims.”

“Any change must be for the courts having heard evidence … if the current judicially approved index is to be challenged, that challenge must be made in the courts.”

An indication to make a further adjustment for inflation. The editors regard it as a matter of principle that an adjustment for the level of inflation at the date of award or settlement should be made. This could give rise to practical problems in making accurate offers and in reflecting on past offers made or received. There could also be knock on procedural effects, particularly regarding claims valuations, relevant court tracks (and portals) and for thresholds for fixed recoverable costs.

"To our surprise, the issue of whether to apply inflationary increases between editions still seems to attract some controversy when, in accordance with conventional practice and procedure, it should not ... For the avoidance of doubt, an inflationary increase to the guideline figures should be applied to ensure that figures remain up to date.”

Amendments to the text in the chapter on awards for abuse. Figures for certain levels of personal injury arising from sexual and/or physical abuse have, too, been increased by +22% but there has also been a re-writing of certain of the brackets in this developing area, leading to significantly different figures for reasons other than, and in addition to, inflation. 

You can read more on these claims in our analysis.

Application to England & Wales only. The guideline figures are, however, used in Scotland but require an adjustment of 100/110 (0.909 repeating). The reduction is necessary because English general damages were increased by 10% in 2013 (in Simmons v Castle) as a balance to the ending of inter partes recovery of success fees uplifts. Northern Ireland produces its own guidelines which are entirely different to those in England & Wales.