Can the Civil Liability (Contribution) Act 1978 apply to claims arising outside England & Wales?

Today and tomorrow the Supreme Court will examine this question in the context of alleged clinical negligence in Germany dating back to 2000. The hearing is the final determination of the point and follows the Court of Appeal’s July 2020 decision in this case, which was the subject of a blog at the time (linked here).

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NI discount rate changes to minus 1.5% as of today, 22 March 2022

The Government Actuary (GA) has now carried out the rate-setting calculation detailed in the Damages (Return on Investment) Act 2022 to set a new discount rate for personal injury claims in Northern Ireland involved damages for future losses. The new rate, which applies from today, is -1.5%. At this level, the new rate in NI:

  • is probably somewhat lower than would have been widely expected
  • remains the lowest in any jurisdiction in the UK and Ireland, leading to the highest awards and claims cost, and
  • will be subject to further review and re-calculation in July 2024

The newly effective rate is a modest change to the rate under the previous legislation, i.e. -1.75%, which had been introduced on 31 May 2021. That said, it is worth noting that the GA explains in the report setting out his latest calculations that a rate assessed today, under the previous approach, would have been “in the region of -2.25%.”

It is probably fair to say that the new rate being as low as -1.5% is unlikely to have been anticipated generally. Although some negative movement from the Scottish rate of -0.75% produced in September 2019 under all-but identical legislation was regarded as likely, the deterioration in economic conditions in the last 30 months has led to the outcome of -1.5%. As the GA observes: “over the last few years, expectations of future inflation have increased whilst expectations of future returns on most asset classes have fallen. This results in a lower PI discount rate than would have been the case if it had been set a number of years ago.”

It is important to note that this new rate will itself be reviewed again in summer 2024 so that the rate-setting cycles in NI and in Scotland will coincide.

The Statutory Instrument setting the -1.5% rate and the GA’s report can be accessed via links at the ‘Notes’ section of the press release issued yesterday by the NI Justice Department.


Written by Alistair Kinley at BLM (alistair.kinley@blmlaw.com)

A judicial balancing act between over and under compensation

We have to remind ourselves from time to time that the purpose of compensation is to put the injured party in the position that they would have been but for the accident, so far as money can do so. They are entitled to no more and no less, sometimes known as the 100% principle. A recent clinical negligence case covers various issues which are relevant when considering these broad principles, including issues around double recovery (of both compensation and state funding), the form of award (particularly the approach to a periodical payment order) and claims that are not recoverable (in this case, financial management through a personal injury trust).

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