Judicial College Guidelines — increases to the guideline rates

The seventeenth edition of the Judicial College Guidelines (“the Guidelines”) will be published on 5 April 2024. Considering the time passed since the last edition, the significant increase in the rate of inflation and cases such as Blair v Jaber [2023] and Dee v Welsh Ambulance Services [2023] (in particular see paragraph 61 of the judgment) there has been a significant increase in the recommended settlement guidelines.

The new guidance, taking into account inflation up to the end of August 2023, allows for an average 22% increase in the current recommended settlement guidelines for most injuries. This figure is calculated to reflect the changes in the Retail Price Index (“RPI”) between the editions.

The introduction section in the Guidelines maintains that the value of an injury should always be considered with inflation in mind. Given that August 2023 is the point in time for the values set out in the Guidelines, it follows that “of course these guideline figures should be increased by the appropriate index for inflation between August 2023 and the date of the assessment of damages”. Therefore, the rate of inflation will need to be considered right up to the date of settlement. Thankfully, at time of writing, there has been minimal change to the RPI since August 2023. 

However, it should be remembered that that the Guidelines are not tramlines. The decisions of the court are reflected in the Guidelines, and not the other way around, and do not bind the court in the valuation of damages or debar the judge from taking all other relevant factors into account. This explains the use of RPI rather than the Consumer Prices Index (“CPI”) to calculate the increases in the Guidelines. Some argue that this is a more appropriate inflationary indicator, but this has been rejected, for now, by the courts and the editorial team continue to use RPI as the judicially approved measure.

Exceptions to the 22% rise

Injuries resulting from sexual abuse

The previous edition of the Guidelines listed three categories for injury arising out of sexual abuse: less severe, moderate and severe. The new Guidelines now list four categories: less severe, moderate, moderately severe and severe. 

The less severe and moderate categories have been increased by 22% in line with the rest of the Guidelines but the moderately severe and severe categories have been increased substantially. For injuries caused by severe abuse, the Guidelines have been increased by 144%.

Injuries resulting in paralysis

Mentioning Scarcliffe v Brampton Valley Group Ltd, the Guidelines make a clarification that “the provision of technology which serves to restore function or reduce pain may be reflected in a lower award of general damages.” Therefore, an important consideration for the valuation of these types of claims will be the existence and availability of medical technology that can reduce the severity of the claimed injuries. If provision of such technology is possible then this may lead to a lower award of general damages.

Conclusion

In times of relatively low inflation it is easy to forget that it should always be considered when valuing claims and making offers. However, the changes in the rate of inflation since the last edition of the Guidelines have now made it a key issue in valuing claims for injury. In the circumstances, it may be prudent for insurers and the self-insured to review current reserves to ensure that these reflect the changes to the Guidelines. Offers should also be reviewed to ensure that they still afford sufficient protection.