Draft proposals have been published in Jersey with a view to new law being introduced to change the way the discount rate is set.
Draft proposals have now been published by the States Greffe in Jersey (which provides support to the Jersey parliament, the States Assembly) with a view to new law being introduced to change the way the discount rate is set on the island.
Jersey is not part of the UK and has a distinct legal jurisdiction. The Damages Act 1996 under which the Lord Chancellor currently sets the discount rate in England and Wales has no application in the Channel Islands.
The draft law put forward in Jersey would introduce the setting of the discount rate by its parliament. It will also allow the courts to order PPOs in Jersey without the need for the parties’ agreement.
Currently, the court sets the discount rate in each case. Although, leading cases provide guidance, it is open to the parties to argue for a different figure.
The Draft Damages (Jersey) Law 201 proposes setting dual discount rates:
- Where the whole of the award is to cover a period of 20 years or less, the rate will be 1% reduced by the inflationary difference between Jersey and the UK (currently 0.5%) resulting in a discount rate of +0.5%.
- Where the award is to cover a period of more than 20 years, the whole of the award will be subject to a discount rate of +1.8% (applicable to the whole of the award not just the costs arising after the first 20 years).
When reviewing how the rate should be set the consultation included review of the detailed analysis of likely investment returns in personal injury cases undertaken by the UK Government Actuary’s Department. It was recommended that claimants be viewed as low risk investors likely to use a diversified portfolio rather than Index Linked Government Stocks. The higher inflation rate in Jersey than in the UK was also taken into account.
The draft law has been lodged by the Chief Minister for debate in December 2018. If adopted by the States and sanctioned by the Privy Council, the new rate will come into effect 7 days after the law is registered. The new rates may come into effect as soon as the early part of 2019 and will be applied to all awards of damages after the commencement date unless there are ECHR issues.
The rates may be varied in the future by the Chief Minister after consultation, but the rates cannot become negative…. READ FULL ARTICLE