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A summary of key developments including an update on the Scottish Law Commission’s report on damages for personal injury; the personal injury discount rate in England and Wales; the whiplash tariff; the recently published consultation on litigation funding; expert witness market developments; and the risk of fraud regarding autonomous vehicles.
Scottish Law Commission reports on damages for personal injury
On 4 December 2024, the Scottish Law Commission published its report on damages for personal injury, along with a draft Damages (Scotland) Bill. This follows a discussion paper which was published in February 2022 as part of a medium-term project to examine whether, and if so how, any clarification or reform of the law in this area should be undertaken to reflect societal change.
The report focuses on four key areas:
- Awards of damages in respect of services provided to and by an injured person and specifically whether the restriction to "relatives" should continue to apply.
- What deductions should be made from awards of damages.
- The operation of provisional damages, particularly in the context of asbestos-related disease.
- The management of damages awarded for the benefit of children so that the children’s interests can be best safeguarded.
The Commission’s task is to recommend ways of simplifying, updating and improving the law of Scotland. It is an advisory public body and the Scottish Government is not bound by its recommendations. It remains to be seen whether the recommendations will be taken forwards.
Contact: Lesley Allan
Related item: Scottish Law Commission publishes its report on damages for personal injury
New positive personal injury discount rate in England and Wales
On 2 December 2024 the Lord Chancellor, Shabana Mahmood, announced that the personal injury discount rate (PIDR) in England and Wales will remain as a single rate, but has been adjusted from -0.25% to +0.5%. The change will become effective as of 11 January 2025. This increase in the PIDR follows the discount rate changes in Northern Ireland and Scotland which were also recently set at +0.5%.
We welcome the Lord Chancellor’s review which has involved meetings with stakeholders, numerous consultations and the appointment of a panel of experts. The new PIDR is fairer in light of the current economic climate and the investment returns available. The increase from -0.25% to +0.5% and corresponding reduction in a claimant’s damages on settlement will enable public funds to be redirected to frontline services, including patient care in NHS claims.
Contact: Mark Burton
Related item: A new personal injury discount rate of +0.5% in England and Wales
Whiplash tariff on the rise
On 21 November 2024 the ‘Lord Chancellor’s Report and Recommendations’ following the statutory review of the Whiplash Injury Regulations 2021 was published and presented to Parliament. The current structure and component parts of the whiplash tariff are to be maintained. Tariff figures in each band are to be increased by 14-15% (accounting for CPI inflation between 2021 and 2024 and building in a three-year buffer). The Lord Chancellor will consult on those decisions with the Lady Chief Justice, and the consultation is expected to be completed within approximately 8 weeks.
Contact: Ian Davies
Civil Justice Council publishes interim report and consultation on litigation funding
On 31 October 2024, the Civil Justice Council’s (CJC) Working Group published its highly anticipated interim report on litigation funding, together with a consultation seeking views from stakeholders on a range of issues including the regulation of third party litigation funding (TPLF), the extent to which funders’ returns on TPLF agreements should be capped, and other available sources of funding.
The report makes no recommendations, nor draws any conclusions at this stage; rather, it discusses the state of play of the litigation funding sector across six key focus areas which provide context for the accompanying consultation, namely:
- The development of TPLF in England and Wales.
- The development of self-regulation of TPLF.
- The different approaches to regulation.
- The approaches to regulation in other jurisdictions.
- The relationship between costs and funding.
- Other litigation funding options available.
The consultation closes on 31 January 2025. The feedback is expected shape the CJC’s recommendations that will be set out in its full report, due for publication by summer 2025.
Contacts: Paula Margolis and Fiona Hamilton-Wood
Related item: A step closer to UK litigation funding reform?
Expert witness market developments
It has been a year since Partners Mark Burton and Joe McManus presented at the annual medico-legal conferences for Bond Solon and Inspire MediLaw – leading expert witness training companies. They shared their thoughts on what defendants look for when selecting and instructing experts and to promote our sector to the next generation of clinicians for succession and future-proofing. It has also been a year since we launched our ‘better expert evidence’ change project with the aim of finding solutions in relation to expert training, procurement and reporting.
The annual Bond Solon expert witness survey, published in November, provides a snapshot into the current issues facing the expert witness market. We highlight the key points which will be of particular interest to our clients:
- Improving standards – in response to the question: “have you experienced ‘hired gun’ experts in your field in the last year?”, 36.96% replied ‘yes’. 39.66% of the respondents had also come across an expert witness who they felt didn’t possessed the appropriate qualifications and experience. In our view, this reflects the judicial trend for properly qualified and balanced experts. Recent judgments indicate that the judiciary is ever more willing to impose sanctions for poorly chosen experts.
- Relations with instructing solicitors – in the last 12 months, 23.28% of the respondents had faced undue pressure from instructing solicitors to change their expert opinion. Although this figure has reduced when compared to the 2023 survey, there is clearly some way to go in educating solicitors on the role of the expert witness. When asked whether there should be a system for experts to notify the Solicitors Regulation Authority about problems between experts and solicitors, 91.25% answered ‘yes’.
- Mentoring for experts - the majority of respondents thought a formal mentoring scheme for expert witnesses with an accredited provider would help improve standards.
- New methods - 90.7% of experts have not used AI to assist in their work. Where AI has been used, examples include checking a statement is clear, improving grammar and sentence structure, and summarising the key issues on a single page.
Contacts: Mark Burton and Fiona Hamilton-Wood
Related item: The expert witness market: changing times
Future risk: the rise of autonomous vehicles fraud
The prospect of autonomous vehicles presents insurers with unique opportunities and challenges, perhaps in equal measure.
As insurers explore solutions to the questions posed by this technology, addressing potential fraud risks must feature: where fraud risks may arise, practical challenges insurers may face and how fraud concerns may lean in to effect later legislation and regulations.
The UK must introduce clear and robust legislation that sets out a framework for cases involving autonomous vehicles. The Automated and Electric Vehicles Act (AEVA) 2018 already lays some groundwork by saying insurers will cover damage caused by autonomous vehicles when they are in autonomous mode. However, further clarity is needed, especially regarding accidents caused by cyber security breaches, software failures or fraudulent data manipulation. We anticipate an uptick in collaboration between key stakeholders, including insurers, manufacturers and software developers, will be crucial.
Contacts: Ruth Needham and Niall Edwards
Related item: The advent of autonomous vehicles may increase fraud risk
United Kingdom