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Chamber

Meeting of the Parliament 18 December 2018

18 Dec 2018 · S5 · Meeting of the Parliament
Item of business
Damages (Investment Returns and Periodical Repayments) (Scotland) Bill: Stage 1
Mason, John SNP Glasgow Shettleston Watch on SPTV

The bill has been more interesting than I think that some committee members might have anticipated. The bill may affect a relatively small number of people, but how compensation is calculated is of immense importance. The whole question of a lump-sum settlement, and how it is invested, is a tricky one.

There seems to be widespread agreement that the present system, which is based on index-linked gilts, needs modernising, while keeping intact the fundamental principle of 100 per cent compensation so that neither party should gain or lose. As an aside, on the question of gilts, it seems to me that there is something fundamentally wrong when a saver gets a lower rate of interest than inflation. However, I accept that that is a wider question and beyond the scope of the bill.

Overall, I agree with the Government approach that we should move towards a cautious but low-risk portfolio. We heard evidence from defenders, including insurers and the NHS, of the risk of overcompensation. Clearly that would hit the premiums of others who take out insurance, or the public purse in the case of the NHS. However, evidence from pursuers’ spokespeople raised the risk of undercompensation, which is certainly not desirable when a person may have suffered horrendous life-changing injuries.

In practice, a perfect balance, with no risk of over or undercompensation, is impossible to achieve, as there will always be uncertainties in such cases; for example, some people live longer and some for shorter periods than had been expected. The Government has argued that we need a standardised approach, and most witnesses and the committee agree. However, there will always be disagreements on how a hypothetical investor will invest their lump sum and whether the assumption of a 30-year period is reasonable, as others have indicated. The Government has indicated that it is open to more than one rate if that seems to be needed, for example by having a 15-year rate and a 50-year rate as well, and that is welcome.

Particularly contentious for defenders has been the further margin adjustment of 0.5 per cent on the discount rate. On the one hand, that is seen as reducing the risk for the injured party; on the other hand, it is seen as moving away from the concept of 100 per cent compensation—no more, no less. We heard that the injured party or pursuer takes on a range of risks, including living for longer than expected, higher inflation, or stock markets plunging, as they did in 2008. On the other hand, if investments do well, the pursuer might gain.

Another interesting area, which I think that my colleague Angela Constance will touch on, is periodical payment orders. The discussion has focused on whether we should move away from the current position, in which PPOs happen only when both parties agree. As an outsider looking on, PPOs can seem an attractive option, as they can take away some of the injured party’s risk, for example the risk of living longer than expected. However, we heard arguments against PPOs, including the pursuer not wanting an on-going relationship with the defender; the financial solidity, or lack of it, of the defender; possible restriction of the pursuer’s need to spend more up front, for example on accommodation; and defenders not liking PPOs as they add uncertainty to their financial position and, in particular, to their financial statements.

The committee was reluctant to go the full way of giving courts complete autonomy on this. That is why conclusion 10 in our stage 1 report suggests an amendment that would provide for a statutory presumption in favour of the pursuer’s preference. I note the minister’s reluctance to limit the court’s ability to make the best decision, and I think that we need to consider that further after today’s debate and at stage 2.

I think that there is general support for the bill. The committee supports the general principles of the bill and I am happy to align myself with that position.

16:13  

In the same item of business

The Deputy Presiding Officer (Linda Fabiani) SNP
The next item of business is a debate on motion S5M-15169, in the name of Ash Denham, on the Damages (Investment Returns and Periodical Payments) (Scotland) ...
The Minister for Community Safety (Ash Denham) SNP
I am very pleased to be here to open the debate on the general principles of the Damages (Investment Returns and Periodical Payments) (Scotland) Bill. I than...
Daniel Johnson (Edinburgh Southern) (Lab) Lab
I accept the minister’s point, in broad terms. Will she give some detail about the out-of-cycle review? In a five-year period, assumptions around investments...
Ash Denham SNP
Daniel Johnson makes a good point. The general point is that the rate must meet the needs of the hypothetical investor and ensure that they get the right amo...
John Mason (Glasgow Shettleston) (SNP) SNP
The committee had concerns about the fact that the court could impose on a pursuer who, for various reasons, might not want a continuing relationship with th...
Ash Denham SNP
We have taken account of that. We recognise that there are many reasons why a PPO might not be suitable for a pursuer or a defender, but we think that the co...
The Deputy Presiding Officer SNP
I call Gordon Lindhurst to speak on behalf of the Economy, Energy and Fair Work Committee for up to eight minutes. 15:48
Gordon Lindhurst (Lothian) (Con) Con
I trust that all members present have read our stage 1 report, which is a classic of the genre. Neil Findlay is not present on this occasion to ask me a ques...
Dean Lockhart (Mid Scotland and Fife) (Con) Con
I thank those who provided submissions on the bill and the witnesses who attended the three Economy, Energy and Fair Work Committee sessions that were dedica...
Daniel Johnson Lab
I thank the member for giving way. I accept some of what he is saying, but does he not accept that the language being used—the talk of a portfolio of balance...
Dean Lockhart Con
The member makes a fair point. That is why the further adjustments that we will come to—such as the 0.5 per cent deduction to pay for professional advice in ...
John Mason SNP
Will the member accept that it is inevitable that some people will be undercompensated and some will be overcompensated? It is not possible to exactly compen...
Dean Lockhart Con
That is a fair point to make, although the vast majority of the evidence sided with the probability that overcompensation would be the likely result of these...
Stewart Stevenson (Banffshire and Buchan Coast) (SNP) SNP
Will the member give way?
Dean Lockhart Con
I am literally about to wrap up. The Damages (Investment Returns and Periodical Payments) (Scotland) Bill is technical, but it is vitally important for thos...
Daniel Johnson (Edinburgh Southern) (Lab) Lab
I, too, thank the clerks and members of the Economy, Energy and Fair Work Committee for their excellent work at stage 1 of the Damages (Investment Returns an...
The Deputy Presiding Officer (Christine Grahame) SNP
We move to the open part of the debate. Members have a generous four minutes for speeches. 16:09
John Mason (Glasgow Shettleston) (SNP) SNP
The bill has been more interesting than I think that some committee members might have anticipated. The bill may affect a relatively small number of people, ...
Maurice Corry (West Scotland) (Con) Con
I, along with my colleagues, welcome this stage 1 debate on the bill. Suffering personal injury is never expected. No one ever wants to have to claim compens...
Angela Constance (Almond Valley) (SNP) SNP
Although the number of people who are directly affected by the bill is small, the bill is nonetheless crucial. We should always remember whose interests are ...
Jackie Baillie (Dumbarton) (Lab) Lab
As a member of the Economy, Energy and Fair Work Committee, which scrutinised the bill, I am grateful to have the opportunity to speak in the debate. Four mi...
The Deputy Presiding Officer SNP
I can give you five minutes.
Jackie Baillie Lab
Oh, my goodness! I cannot guarantee that my arguments will be any more elegant. Let me cut to the chase and focus on two areas: the discount rate and periodi...
Stewart Stevenson (Banffshire and Buchan Coast) (SNP) SNP
I have not been involved with the bill thus far, but I want to develop a number of its aspects; Jackie Baillie has touched on them already. The committee’s ...
John Mason SNP
Will the member give way?
Stewart Stevenson SNP
I will give way to somebody who knows more than I do about that matter.
John Mason SNP
The committee received evidence—I do not know whether the member would agree with it—that perhaps the investment cost would be higher at the beginning and lo...
Stewart Stevenson SNP
I am absolutely sure that the member is correct, but that goes to the heart of how the compensation is provided: whether it is paid in a lump sum up front or...
Jackie Baillie Lab
I will helpfully supply Stewart Stevenson with the discount rate that he was looking for. The Association of Personal Injury Lawyers supplied us with it: it ...
Stewart Stevenson SNP
That is broadly what I would have expected, so I am obliged to the member for that. Investors come in all shapes and forms. Over the years, with my wife, I ...