The new personal injury discount rate - judicial review anybody?

An analysis of the Lord Chancellor's decision making process when calculating the new personal injury discount rate

Executive summary

In our latest briefing paper on the new personal injury discount rate, we take a critical look at the Lord Chancellor’s decision making process and whether it departs from ordinary principles of compensation.

This briefing paper considers the Lord Chancellor’s reasons for setting the new personal injury discount rate at -0.25%, the advice of the Government Actuary and the Ministry of Justice Impact Assessment.

It also examines the principle of full compensation and how this was applied to the PIDR in the leading case of Wells and Wells, which led to an imbalance in the assessment of compensation for future financial loss which the Civil Liability Act 2018 was intended to correct.

We also explain how the GA calculated that a new rate of +0.25% would redress that imbalance by providing an even chance that an award for future loss would meet a claimant’s needs.

Finally, we look at whether the Lord Chancellor was right to accept the GA’s invitation to adjust the calculated rate so as to move it more in favour of claimants, at the paying parties’ expense, by what he calls a ”margin of prudence”. It asks whether that is a flaw in the process which is open to an application for judicial review.

Introduction

This briefing paper is intended to supplement Weightmans partner, Dave Cottam’s recent legal update on the announcement of the new personal injury discount rate (“PIDR”) - The change in the discount rate: an opportunity missed?

It takes a critical look at how the Lord Chancellor reached his decision on the evidence before him and whether that was a fair and just decision according to general principles of compensation.

It is beyond the scope of this briefing paper to examine the underlying investment assumptions over which interested parties have been trading blows over the past two or more years.

For the purpose of this analysis, the only evidence considered is that presented to the Lord Chancellor by the Government Actuary (“GA”).

To download the briefing paper in full, please complete the form below.

If you have any questions or would like to know more about our update, please contact Blaise Smith, Partner, on 0113 213 4056, or blaise.smith@weightmans.com.

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