Personal Injury Brief market insights – November 2018

A summary of key developments, including an update on the Civil Liability Bill, Jersey draft legislation on the discount rate, the Scottish civil justice reforms, and the video hearings pilot.

The Civil Liability Bill at Ping Pong

The Bill has returned to the Lords for consideration of Commons’ amendments, which will take place on 20 November. Concessions are unlikely and the Bill is expected to pass into law before the end of the year. If that is right, the first discount rate review could commence by spring 2019, bringing the possibility of a new rate by the end of 2019.

Implementation of the whiplash reforms within the Bill, together with the related measures of the rise in the small claims limit and new online portal, have been pushed back a year to April 2020 to allow time to undertake large-scale testing of the online systems.

Contact: Mark Burton

Related item: Disapplying the UK discount rate for foreign claimants

Jersey draft legislation shines a light on discount rates

On 24 October 2018, the Draft Damages (Jersey) Law was introduced. It proposes the introduction of a duel discount rate and for courts to be able to award damages by periodical payment orders in Jersey. The proposed discount rates are based upon the consultations launched jointly by the Ministry of Justice and the Scottish Government. Duel rates are proposed at 0.5% for periods up to 20 years and 1.8% over 20 years.

Jersey’s interpretation of the UK consultations suggests a fairer outcome when the new discount rate in England and Wales is finally announced, and is also likely to have a bearing on the new Scottish discount rate. The Jersey decision, based on the Actuaries calculations, showed little difference between the UK and Jersey.

The Draft Law is due to be debated on 4 December 2018.

Contact: Charles Martin

Related item: Jersey draft legislation shines a light on discount rates

Discount (Investment Returns and Periodical Payments) (Scotland) Bill

The Bill is at stage 1 and being scrutinised by the Energy and Fair Work Committee, who has been receiving evidence from key stakeholders in relation to the methodology for setting the discount rate. The next stage is for the Committee to publish its report and for Parliament to debate the general principles before moving on to Stage 2.

Contact: Peter Demick

Related item: Kennedys warns of rising cost of injury claims following Scottish reforms

Consultation on success fee agreements in Scotland

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 (which has similar provisions to LASPO), received Royal Assent on 5 June 2018. The main provisions of the Act will come into force when Scottish Ministers appoint it via regulation. The Act encompasses a provision for a five-year post-implementation review from August 2018.

On 8 November, the Scottish Government opened its consultation into Part 1 of the Act, which deals with the regulation of success fee agreements (no win no fee). The main purpose of the consultation is to determine the correct level of cap for personal injury claims. Proposed caps include up to 20% for the first £100k of damages.

The consultation closes on 19 January 2019. The Scottish Government proposes to implement the new provisions at the same time as the FCA regulation of CMCs commences on 1 April 2019.

Contact: Rory Jackson

Related item: Kennedys warns of rising cost of injury claims following Scottish reforms

Video hearings pilot scheme – court modernisation process

The 101st update to the Civil Procedure Rules introduced a pilot scheme that will test a procedure for applications to set aside county court default judgments heard at the Manchester or Birmingham courts. Subject to their consent, the parties will attend the hearing of the application, using an internet-enabled video-link, and will see and hear, and will be seen and heard by, each other and the judge determining the application. The pilot supports the ongoing reform programme to modernise the court system and will run from 30 November 2018 to 30 November 2019.

Incidentally, the online court pilot is also to end on 30 November 2019, and is anticipated to be fully operationalise by 2020. Whilst this would tie in well with the whiplash reforms it seems this date may be unrealistic.

Contact: Richard West

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