We would like to hear your views on the Damages (Investment Returns and Periodical Payments) (Scotland) Bill.
This Scottish Government Bill was introduced in the Parliament on 14 June 2018 by the Cabinet Secretary for Justice, Michael Matheson MSP. Read the Bill and accompanying documents.
The Economy, Jobs and Fair Work Committee was designated as lead committee by the Parliamentary Bureau on 19 June. The Committee issued a general call for views on 22 June.
The Damages (Investment Returns and Periodical Payments) (Scotland) Bill legislates for administrative matters relating to damages for personal injury. It does not address damages in any wider sense.
We are keen to hear responses to the following and you don’t have to respond to all questions:
What are your views on the Bill overall? Is
legislation in this area required? How far do you think the Bill will achieve
what it sets out to do?
2. Part 1 of the Bill aims “to reform the law on the setting of the personal injury discount rate in order to make provision for a method and process which is clear, certain, fair, regular, transparent and credible”. Is it an aim with which you agree? And to what extent do you believe the reform will achieve all these things – a clear, certain, fair, regular, transparent and credible method and process?
3. In terms of who sets the rate, the Scottish Government proposes to have the rate reviewed by the Government Actuary rather than Scottish ministers (as is the current situation). It believes that this will remove the setting of the rate from the political sphere “where there is the potential for pressure from external interests to attempt to influence the outcome” and “should provide fairness to all parties involved”. What are your views?
4. The Scottish Government has chosen to lay down in detail how the rate should be calculated in legislation. Do you support this proposal over the approach taken in England and Wales of leaving much more to the discretion of the Lord Chancellor and an expert panel?
5. With no statutory requirement for the discount rate to be reviewed regularly, currently there can be a 15 year gap between reviews in Scotland. The Government Actuary will start a review of the rate on the date on which the relevant provisions of the Bill are brought into force. Thereafter they will be required to start a regular review every three years and the Scottish Ministers may decide on an additional, out-of-cycle review, but which would not disrupt three-yearly reviews. Do you have any views?
6. In changing the methodology to move away from a rate based on Index-Linked Government Stock (ILGS), the Bill makes provision “on the basis of portfolios described as cautious and which we believe would meet the needs of an individual in the position of the hypothetical investor who is described in the legislation”. The Scottish Government also states: “The portfolio does reflect responses to the consultation that investing in a mixed portfolio of assets provides flexibility and is the best way of managing risk”. Do you think the Scottish Government is justified in assuming that injured people have access to the necessary expertise to achieve this?
7. Where damages for personal injury are payable, the Scottish courts may make a periodical payments order but only where both parties consent. This differs from England and Wales, where the courts have the power to impose such an order. Part 2 of the Bill will give courts the powers to impose periodical payments orders (PPO) for compensation for future financial loss. Respondents to recent consultations overwhelmingly supported courts in Scotland having the power to impose periodical payment orders, seeing this as a way of reducing uncertainty as well as the risk of over-/under-compensating pursuers. What is your position?
8. How well used do you think the provisions would be in practice? What impact do you think the requirement on the court to ensure the “continuity of payment under such an order would be reasonably secure” would have?
9. The proposals in the Bill would allow the courts to revisit a compensation award where there has been a change of circumstances (although only where this has been identified in advance). This would represent a change to the current law. Do you have any comments?
10. The Bill overall is intended to support the Scottish Government’s national outcome that: “We have strong, resilient and supportive communities where people take responsibility for their own actions and how they affect others”. Do you have any comment?
11. In previous consultations in this area, views have tended to be polarised between pursuer and defender interests. Does the Bill, in your view, manage to balance these interests?
12. Are there any other aspects of the Bill you wish to comment on?
How to submit your views
Please see our policy on how we treat the information you send us
The call for written views will close on FRIDAY 7 September.
Before making a submission, please read our privacy notice about submitting your views to a Committee. This tells you about how we process your personal data.
Please use the template provided to format your submission. This includes the Data Protection Form. Please complete this form and send it in with your submission.
We welcome written views in English, Gaelic, Scots or any other language. Due to the time required to process and analyse evidence, late submissions will only be accepted with the agreement of the Committee.
Written responses should be sent electronically, in the template format to the following address:
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If you cannot submit electronically you may send in a hard copy written submission. If you are sending in a hard copy submission please print off and include a copy of the Data Protection Form. Please send them to:
Economy, Jobs and Fair Work Committee