Response by the Association of High Court
Masters to the Ministry of Justice Consultation paper on the Civil
Law Reform Bill
DAMAGES
Question 1. Do you have any comments on the
draft clauses of the Bill relating to the law of damages?
Comments:
Dependancy Damages: We support the proposals
for reform.
Damages for Bereavement: We support the
proposals for reform.
Consideration should be given to adjusting the
amount of the bereavement award annually so that the award keeps
pace with inflation.
Damages for Gratuitous Services:
Serious consideration should be given as to
whether a Court should be prohibited from awarding damages in
respect of the gratuitous provision of services by the tortfeasor
for any period before the date of the award. There is a strong
argument that there should be no such prohibition because:
(1) The tortfeasor who provides care will almost
always be a family member and as a matter of public policy, they
should not be discouraged from providing gratuitous care. If the
care is provided commercially, it will almost invariabily be at
a significantly greater cost.
(2) The prohibition may encourage the claimant
and carer to attempt to circumvent the prohibition, which is undesirable.
In Kemp and Kemp, the Quantum of Damages, volume 1, tab 13, paragraph
13-012, it is said,
"It might be possible for the claimant to
avoid the consequences of this decision[5]
by entering into a contract with the tortfeasor for the provision
of the services and a claimant's solicitor should give advice
to this effect at the earliest opportunity. It is perhaps unfortunate
that the law requires such a device when the tortfeasor/carer
is likely to have been injured and is therefore not going to be
paying the damages personally."
If it is considered that Section 7(4) of the
Bill should be enacted, in order to avoid satellite litigation,
consideration should be given to stating the application of the
prohibition where the gratuitous carer is not the sole tortfeasor
and is only partially responsible for the claimant's injury. Should
the partial liability in respect of the claimant's injury serve
to extinguish the carer's claim for gratuitous care or should
it only reduce it in accordance with the extent of the carer's
liability? We suggest that it would be unjust if the partial liability
in respect of the claimant's injury extinguished the claim for
gratuitous care. It would provide the tortfeasor who has not provided
care with an unjust windfall.
Question 2. In particular, do you have any
views on how the concept of additional damages pursuant to the
2004 Directive should be expressed in terms appropriate to
Scots law?
Comments: We have no views.
Question 3. Do you agree with the impact assessment
on the proposed reforms relating to the law of damages at Annex
C?
Comments: We have no comments on the impact
assessment.
INTEREST
Question 4. Do you have any comments on the
draft clauses of the Bill relating to the setting of pre—and
post-judgment interest?
Comments: We are concerned that the secondary
legislation should not restrict the discretion of the judge as
to whether to award interest.
Provision should be made for the interest rates
to be reviewed on an annual basis so that the rates do not become
(as they are at present) out of step with market rates.
Question 5. Do you agree with the impact assessment
on the proposed reforms relating to the setting of pre—and
post-judgment interest at Annex D?
Comments: We have no comments on the impact
assessment.
SUCCESSIONQuestion
6. Do you have any comments on the draft clauses of the Bill
in relation to the distribution of estates of deceased persons?
Comments: We support the proposals for reform.
Question 7. Do you agree with the Impact Assessment
on the proposed reforms relating to the law of succession at Annex
E?
Comments: We have no comment.
RIGHTS OF
APPEAL
Question 8. Do you have any comments on the
provisions of the draft Bill relating to rights of appeal?
Comments: We have no comment.
Question 9. Do you agree with the impact assessment
on the proposed reforms relating rights of appeal at Annex F?
Comments: We have no comment.
ABOUT YOU
Please use this section to tell us about yourself:
| Full name | Master Richard Roberts
|
| Job title or capacity in which you are responding (eg member of the public etc.)
| Member of the Association of High Court Masters
|
| Date | 8 February 2010
|
Company name/organisation
(if applicable):
| Association of High Court Masters |
| Address | Royal Courts of Justice, Strand, London
|
| Postcode | WC2A 2LL |
| If you would like us to acknowledge receipt of your response, please tick this box
| Y
(please tick box) |
| Address to which the acknowledgement should be sent, if different from above
| By email |
| |
If you are a representative of a group, please tell us the
name of the group and give a summary of the people or organisations
that you represent.
Association of High Court Masters
The Association represents all five High Court branches ie
the Chancery Masters, the Queen's Bench Masters, the Bankruptcy
(and Company) Registrars, the District Judges of the Principal
Registry of the Family Division and the Senior Court Costs Judges.
February 2010
5
Hunt v Severs [1994] 2 AC 350. Back
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