Friday, January 27th, 2017

Discount Rate Review Update

On 26th January 2017, Lord Justice Sales refused permission for the ABI to appeal the decision previously taken to deny them the right to seek to judicially review the proposal to amend the discount rate (previously tracked on the Compass website here). Andrew Smith QC [who practices in England as well as Scotland] has explained that the refusal for permission was following written application to the court. The ABI can apply to have an oral hearing on the question which can call before either the same judge or indeed a different judge or judges.

A copy of the refusal reasons is attached below. the original judgment has been ordered up, but from the refusal reasons it would appear that the arguments were that the change in the discount rate would be retrospective and contrary to the non retrospectivity rule of legislation. LJ Sales pointed out that the date of a judgment is in the future; and thus calculations on discount rates, even if they are partially to the past, are not retrospective but prospective. In any event, he said that the complaint that the ABI should have been consulted by the Lord Chancellor’s department is an argument they can make after the change comes in. Accordingly, the application to judicially review is premature.

It remains the position that for practitioners, there may be a significant increase in damages where Ogden tables are used, after the change comes in - about which there is no fixed date. There is a suggestion that this might be delayed for a while anyway. Those defending claims have an interest in pressing for settlement prior to change; those pursuing them to delay until the change occurs.

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