The RTA protocol has processed over six million claims – but costs points are still going to appeal

Two decisions of the Court of Appeal in recent weeks have referred to approximately six million claims having been started in the low value RTA protocol since its introduction. That number is roughly equivalent to one in ten of the population of England & Wales. Both recent decisions – Aldred v Cham and Lai Ho v Adelekun – examine detailed points of the associated fixed costs regime and are said to affect significant numbers of cases.

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Ogden Tables approach endorsed by Judicial Committee of the Privy Council

As is widely known, the processes for setting an appropriate discount rate (or rates) for valuing future pecuniary loss are moving forward under separate legislation in both England & Wales and in Scotland.

The matter of updating the Ogden Tables to reflect any new rate (or rates) and to deal with changes in population life expectancy has consequently taken something of a back seat in recent years and, as far as we can tell, remains on the back burner very probably until new discount rates are determined under both pieces of legislation.

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Does a decision change the law if it turns on its own facts?

The orthodox answer to this question is no, on the basis that it is the peculiarities of the facts which give rise to the outcome, rather than any new legal approach. In two decisions this week in the tort of negligence, the clinical claim Darnley in the Supreme Court and the vicarious liability claim Bellman in the Court of Appeal, the higher Courts worked from the initial findings of fact and applied the existing law to them to drive different outcomes from those reached in the courts below.

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