Yesterday the Justice Committee of the Northern Ireland Assembly released its report following detailed scrutiny of the legislation designed to re-set the personal injury discount rate (PIDR). The 172 page report was signed off at the Committee’s meeting on 21 October. As would be expected given the length of the document, all of the issues and arguments are thoroughly examined, but in reality the key point to take away is that the Committee is content with the Bill as drafted and does not propose any changes to the text.
That will not, of itself, speed up the Bill’s passage through the Assembly. However the fact that the relevant scrutiny Committee has examined the topic and the text in close detail over the last seven months or so and is content with the provisions might reassure MLAs reviewing the Bill during Consideration Stage that it is fit for purpose.
Our first blog about this case (by Alistair Kinley here) considered jurisdiction and the ‘gateway’ in the tort claim, which was agreed to be subject to Egyptian law. This piece now considers the second limb of the appeal in FS Cairo v Lady Brownlie  UKSC 45, namely whether and to what extent the claimant must provide evidence of nature of the applicable foreign law (ie Egyptian) to demonstrate that she has a good arguable case / reasonable prospects of success on the merits under that applicable law.
Presumptions may be employed and evidence may be considered by the court when examining the merits test under the applicable foreign law. It is worth flagging in this introduction that this is quite a technical procedural area.
A report of claims numbers and activity was published yesterday. The data has been released in aggregate, i.e. for the full three months of June to August, rather than broken down by activity each month. For that reason, we are unable at this stage to analyse trends but the OIC report nevertheless provides useful breakdowns of the aggregate data. As the online publication from OIC is both brief and an easy read, we shall not summarise it further but simply pick out some key features, below.
- Total notified claims of c. 46,000 (just under), comprising 90% represented and 10 unrepresented cases.
- Combining with Claims Portal data over the same three month period (c. 52,000) gives a total of 96,000 low value motor claims from June to August. Breaking the six months before the OIC portal was launched on 31 May into two periods we see slightly higher throughputs of 106,000 and 114,000 cases over those three month periods.
- Represented claims in the OIC portal are brought by law firms, 74% and ABS business, 26%. Claims management firms account for less than 0.5% of represented claims (which is not to say they are not involved in other ways).
- A liability decision was made in just over half (54%) of claims and the 90:10 represented: unrepresented split in overall case numbers is carried across to the breakdown of liability decisions. As to the detail of the liability decisions, in represented cased 84% were ‘liability in full’ compared to 95% in unrepresented cases.
- Exceptional injuries/circumstances were raised in 24% of represented claims compared to 40% of unrepresented claims.
- 94% were tariff claims, being 33% pure tariff claims (ie whiplash only, or whiplash and minor psychiatric harm) and 61% involving the tariff and a non-tariff injury. The fact that 3 in 5 cases involve valuation of mixed injuries – on which there is no guidance – clearly underlines the importance of early market moves to identify test cases to secure guidance form the courts.
BLM has developed an electronic OIC Portal Injury Calculator to support valuation of mixed injury cases in the new portal by combining the tariff bands with Judicial College Guideline figures for non-tariff minor injuries.
Please contact your usual Motor or ‘KYO’ contacts at BLM to find out more about our OIC calculator or if you would like to discuss any aspects of the recent OIC data in further detail.
Alistair Kinley, Director of Policy and Government Affairs at BLM (email@example.com)