Sun11192017

Last updateTue, 24 Feb 2015 5pm

Jennifer Stone, Nick Leech, Andrew Sands and Nick Martin reflect on the implications of the change in the discount rate

In order to understand the current discount rate, it is useful to appreciate what has led us to this point. For a large portion of the last century, lawyers and judges were reluctant to utilise consistent calculations for the compensation for future losses. This created great uncertainty and arguably unfairness in awards of damages.

Nigel Spencer Ley reviews the effect of the new discount rate on accommodation cases like Roberts v Johnstone

Amid apocalyptic warnings from insurers as to the impact of the change in the discount rate, there is one small piece of good news for defendants: if the method for calculating damages for the additional capital cost of new accommodation set out in Roberts v Johnstone [1989] is applied strictly, a claimant purchasing more expensive accommodation as a result of their disability will have to pay damages to the defendant.

Patrick Limb QC provides practical advice on how and when to make offers following the lowering of the discount rate

A week is a long time in personal injury litigation. On Monday 27 February 2017 came the ministerial statement announcing the lowering of the discount rate from 2.5% to minus 0.75%. The day following, there was a meeting between 13 CEOs of the insurance industry with the Chancellor of the Exchequer leading to a joint statement from the Chancellor of the Exchequer, Philip Hammond, and the Director General of the Association of British Insurers, Huw Evans. By Wednesday 1 March (as planned) there were questions of the Lord Chancellor who attended before the House of Lords, Justice Select Committee. On Thursday 2 March, there was publication of a consultation paper on a redress scheme for severe birth injury (the state, it may be noted, being the principal tortfeasor for such large claims); and the online publication of a highly instructive paper by Sir Henry Brooke on the origins of the statutory discount rate for lump sum personal injury awards.

Bill Braithwaite QC explains multipliers and the future of the discount rate in personal injury compensation

When I took silk I had time on my hands because I wanted to specialise in brain and spine injury – so I read Kemp & Kemp from start to finish – the narrative not all the case reports. David Kemp was a pioneer in personal injury, and it was his words in Kemp that started my interest in multipliers. My brother is an actuary, and one of his partners was on the Ogden Working Party. I had a long discussion with him, and that set me off on the right track. In those days most people either didn’t understand multipliers, or didn’t want to. I started writing and lecturing; there were two main topics – should we use actuarial tables and, if so, what discount rate was appropriate. I did loads of talks, with insurers and defence solicitors sitting in the front row shaking their heads! We won that battle, and use of the tables, and a rate of 4.5%, were established. That went to 3%, and then 2.5%, and now it’s down where it should be at minus 0.75%. Will it stay there? See below for my thoughts.

Patrick West explores the test of fundamental dishonesty

In the film Pirates of the Caribbean, Jack Sparrow said:

Contaminated food; package travel holidays; reasonable care; transfer of goods

This important package travel case represents a significant coup for claimants in the context of food poisoning cases. Although the package travel industry will be disappointed by the court’s decision, comments in the judgment suggest a demanding approach to establishing causation on the evidence.

Julian Matthews looks at recent case law on the issue of consent to medical treatment including the recent Court of Appeal decision of Webster

Legal and medical practitioners alike recognised that the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [2015] represented a major change in the approach to be adopted when dealing with the issue of consent to medical treatment. What was not wholly apparent was how the principles set out in Montgomery would be applied in practice. There was a genuine concern that the apparently clear principles would be undermined by first instance courts who might feel that the consequence of applying the principles was in some way ‘unfair’ to medical professionals, and would try and re-introduce some elements of the ‘Bolam’ test in order to restrict liability, particularly in relation to assessing what information ought to be provided to the patient at the time any consent to treatment was taken. The Court of Appeal has now delivered its first decision in a consent case since Montgomery, which gives a real pointer to lower courts and practitioners on the extent to which the Montgomery principles will be observed, and how they should be applied in difficult cases.

Brian Dempsey examines the rigid application of the fixed recoverable fees regime

In 2013, the government introduced a myriad of changes to the rules at a breakneck speed, not only those giving effect to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 but also major changes to the Protocols and the Civil Procedure Rules themselves.