NI discount rate-setting legislation makes further progress

The legislation passed another stage in the Assembly yesterday without amendment (very much as we had suggested in the previous blog). There was broad support for the reforms it will bring to the discount rate and universal support for getting on with this quickly (despite the six month Committee Stage, from March to October). IF no further amendments are tabled, the next stage will be taken without debate and the Speaker would signify that Final Stage debate may proceed.

Some of these next steps could be taken in the month or so before the Christmas recess so, standing back from the detail, it remains realistic to envisage a new discount rate taking effect in the second quarter of 2022.

[Yesterday’s debate is reported from page 45 of the Assembly Hansard here]

Written by Alistair Kinley, Director of Policy and Government Affairs at BLM

Brownlie: absence of foreign law evidence is not always fatal

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 [2021] 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.

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Official Injury Claim service releases first three months of claims data

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 (