No appeal in discount rate decision

Just a few days ago, the routes to appeal in relation to the discount rate for future pecuniary losses in personal injury cases were exhausted with the court’s refusal to entertain a hearing on the issue.

This development is not, however, in the context of the Association of British Insurer’s recent challenge to the Lord Chancellor’s plans for the statutory discount rate in the UK but rather it arose from the decision of the Supreme Court of Ireland to refuse the compensator’s application for leave to appeal in Gill Russell v HSE.

At first instance in December 2014, the Russell case set the common law discount rate(s) in Ireland at 1.0% and 1.5% (for future care and other future losses respectively). This was affirmed unanimously by a three-member Court of Appeal in November 2015. We reviewed these decisions in earlier articles which can be reached via these links: commentaries on High Court and on Court of Appeal decisions.

The Supreme Court’s determination in this case on 1 February 2017 runs to 31 pages. In something of an understatement, the court notes that as being “somewhat more detailed than normal”.

An important part of the court’s reasoning is that since the Court of Appeal was set up in 2014, “the function of this Court [the Supreme Court] is no longer that of an appeal court standing one remove from the trial court: that role is now exclusively vested in the Court of Appeal.”

Although the refusal would appear to end any uncertainty about the personal injury discount rate for the time being in Ireland, it may catalyse other developments, in particular the passage of a Bill to provide Irish Courts with powers to order periodic payments.

An early outline of a Bill to this effect was subject to consultation back in summer 2015. A revised text was finally presented to the Oireachtas as a Government Bill last month, on 10 January 2017 (we shall post a brief commentary on it fairly shortly). This Civil Liability (Amendment) Bill borrows very closely from the scheme for periodical payments introduced in England & Wales by the Courts Act 2003 and associated Civil Procedure Rules and Practice Directions.

Unlike in the UK, Ireland does not have a statutory discount rate in force, despite provision having been made more than ten years ago, in section 24 of the Civil Liability and Courts Act 2004, for the Justice Minister to prescribe a rate. Whether the recent denouement of the Russell case might lead to the exercise of the power in this section could be worth watching closely, particularly given that the Oireachtas Joint Committee on Finance and Public Expenditure just a few weeks ago specifically recommended in its “Report on the Rising Costs of Motor Insurance” that “the Minister for Justice and Equality immediately review the current discount rate and use the legislative powers to set an appropriate rate.”

ak  campbell-g-17-9-15-_0007-web-400

Written by Alistair Kinley, director of policy and government affairs and Gavin Campbell, partner and head of office, Dublin

Leave a Reply