“The somewhat controversial function of bereavement damages” – part II

Last October a report was posted here under the above title. This phrase was taken from a paper issued by the Department of Justice in Northern Ireland (DoJNI) in which it outlined approaches for bringing statutory bereavement damages awards up to date. Further details were provided in this post in mid-October. On 29 January 2016, the DoJNI reported that it has decided to increase the statutory award, when legislative time allows, in line with the Consumer Prices Index (CPI). It also said that further updating of the figure should happen every three years. The body of this post also reports on two related matters in England and Wales.

The recent DoJNI response to its consultation gives a very clear summary of what is intended to happen next:  “…the Department proposes to increase the award of bereavement damages in Northern Ireland in line with inflation, as measured by the CPI, rounded to the nearest £100, with adjustments to be made every three years thereafter. Based on the CPI for November 2015, this would bring the award to £14,400. This is a more rational, transparent approach than aligning with the figure in England and Wales, which was increased using a method associated with changes to civil litigation which do not apply in Northern Ireland.”

 The changes referred to there in England and Wales are the Jackson reforms and the Legal Aid Sentencing and Punishment of Offenders Act 2012. Part 2 of the latter ended the recoverability of success fees from defendants. The former recommended doing that and in addition recommended an increase of ten percent to general damages awards by way of an ‘interlocking reform’. That increase was effected for personal injury claims by the Court of Appeal in Simmons v Castle [2012] EWCA Civ 1288 and its application to the statutory bereavement award was brought about by SI 2013 No 510, which carries a rather does-what-it-says-on-the-tin title: The Damages for Bereavement (Variation of Sum) (England and Wales) Order 2013.

There is no evidence of any move to update the amount set then, ie £12,980. Indeed Justice Minister Caroline Dinenage said on 27 January 2016 that Ministers received only “one piece of Ministerial correspondence … in the last six months concerning the family of a deceased person affected by the 1976 Act.”

The Minister’s reply does not necessarily mean that the current fatal accidents legislation is uncontroversial: in fact, the Association of Personal Injury Lawyers (APIL) has made reform of the principles of compensation following fatal accidents a key strand of its campaigning agenda. In addition, proposals on the topic figure very prominently in a Private Member’s Bill tabled by Labour MP Andy McDonald, as we reported in the earlier post in October. Although that Bill was listed for its Second Reading on 22 January 2016, there was never going to be time to debate it then. It has since been relisted for 11 March, but it is even further down the agenda then and looks to have no realistic chance of securing a debate.

About the Author

akAlistair Kinley is BLM’s Director of Policy & Government Affairs.

Alistair is responsible for BLM’s engagement with government departments and regulators on policy and public affairs issues and consultations affecting the firm and its customers. He coordinated BLM’s market-facing activities in connection with the Insurance Act 2015 and the consultations which preceded its publication and introduction in Parliament.

He is a member of the Civil Justice Council (CJC), a regular speaker and experienced commentator on legal and procedural reforms and was a contributing editor to the Law Society’s Litigation Funding Handbook (September 2014).

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