Response by Beachcroft LLP to the Ministry
of Justice Consultation paper on the Civil Law Reform Bill
Beachcroft LLP is one of the largest national
commercial law firms in the UK. With over 1,400 employees,
it provides legal advice and litigation services from seven locations
in the UK and also in Brussels. Beachcroft provides "trusted
adviser" work for major national and international organisations,
and delivers integrated legal services to clients in six main
industry groups: health & public sector; real estate; financial
services (including the insurance industry); technology, media
& telecommunications; consumer goods & services; and industrial
manufacturing and transport.
The specialist nature of the firm's dispute
resolution practice is reflected by the breadth of services offered
to the financial services and insurance industry. Sixty of its
Partners and over 300 of its lawyers advise the insurance
industry on a daily basis, providing tailored solutions to a broad
range of issues. Clients include the top ten composite insurers,
specialist companies, leading re-insurers, Lloyd's syndicates,
professional associations and self-insureds. In the health care
and commercial sector, the firm's litigators handle a range of
medical and clinical negligence, employers' liability and public
liability cases and a variety of other litigation on public sector
law and patient care issues.
The questions set out in the consultation questionnaire
are as follows:
1. Do you have any comments on the draft clauses
of the Bill relating to the law of damages?
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?
3. Do you agree with the impact assessment on
the proposed reforms relating to the law of damages at Annex C?
Beachcroft is responding to the questions in
this consultation as far as they relate to damages only.
Extending the category of claimants
1. DEPENDANTS
The proposed extension of the Fatal Accidents
Act (FAA) to include any person who was being wholly or partly
maintained at the time of death does create an opportunity for
there to be litigation by a wider group of people and to create
uncertainty. In reality, the numbers of individuals who fall in
to this category would at first glance appear small. However it
is inevitable that given an opportunity there will be an increase
in the diversity of claims made.
The proposals do not include any minimum time
period for which the maintenance need have occurred, hence in
theory it would be possible for a dependency claim to be made
by someone who stated they had been maintained by the deceased
albeit for example only for one month pre death, and yet anyone
who had been co-habiting to have to establish a relationship for
two years or more. We do consider that there is benefit in including
the "catch all" provision but consider it would be appropriate
to bring it in line with the remainder of FAA s.1(3) and apply
a time period during which the maintenance had been provided.
We consider it is appropriate that the contribution
need not have been in money's worth so that an individual who
had been provided with substantial care could make a claim as
a dependant. What amounts to a "substantial contribution"
may of course become the subject of future litigation.
2. RELATIONSHIPS
We agree it is appropriate that the fact of
a marriage, civil partnership or relevant relationship must be
taken in to account. This remedies the previous inequitable situation
whereby it could be argued that the remarriage of a widower could
be considered but not that of a widow.
We note the change in terminology from "must"
for the partner of the deceased to "may" in connection
with the child of a deceased, we consider that the court must
be required to take any relationship in to account in both situations.
With regard to the definition of a relevant
relationship we consider that reference to "at the time when
the action is brought" is ambiguous and the relationship
should be capable of consideration at any time prior to settlement
of the claim.
We do not consider it is appropriate to introduce
a time period for relevant parties, but none for those who have
entered into a legally binding relationship. Further there should
not be a requirement of co-habitation, relationships where the
parties do not live together may be as stable, long term and relevant
as those where they do. We consider the court should be required
to take into account any relationship which the claimant has entered
in to. Having considered that relationship, the court may determine
that it is not relevant and thus not consider it further, but
it should not be precluded from doing so.
3. RELATIONSHIP
BREAKDOWN
We agree it is appropriate for consideration
to be made of whether a relationship would have ended. We think
the court should be free to take this into consideration in all
circumstances and not just those prescribed. There may be evidence
of a breakdown in a relationship which does not fulfil the proposed
categories stated, for example where one party has raised the
issue with a medical professional or sought relationship counselling.
We also consider that it should be possible to raise the issue
of a breakdown in a non-legally formalised relationship which
is just as likely to come to an end as a marriage or a civil partnership.
It is not appropriate to have two systems in place, one for legally
formalised relationships and one for other relationships.
4. LACK OF
FINANCIAL SUPPORT
We do not consider it is necessary to omit the
current FAA s.3(4) and consider that the court should be able
to take this issue into consideration where appropriate.
5. BEREAVEMENT
ALLOWANCE
We consider that it is appropriate to end the
ambiguity about the entitlement of co-habitees to claim a bereavement
award.
We also agree that it is appropriate for children
to make a similar claim. We are pleased to note that the category
of claimants entitled to seek a bereavement allowance is not being
extended further and that the sum claimed will remain a fixed
sum, that a child will be entitled to half of that sum and that
where there are claims by a former spouse and a current co-habitee
or by both parents of a child under age 18 that the amount
payable will be equally divided. We do not consider it is appropriate
to extend the entitlement to a bereavement allowance any wider
than these categories.
The Impact Assessment on the proposed reforms
relating to the law of damages at Annex C
In connection with all of the above we note
that the Impact Assessment bases the number of FAA claims on the
number of motor accidents, accidents in the workplace and those
covered by public liability insurance without any consideration
of the claims made as a result of fatal long tail diseases. We
accept that the majority of claims of this nature to date, taking
mesothelioma for example, have been made by widows of the deceased
who are able to make a claim under the FAA as currently drafted.
As society changes and as the cohort of claimants who seek damages
in these circumstances changes, the impact of the proposed reforms
will be wider than as averred in the Impact Assessment. To that
extent we consider that the Impact Assessment has undervalued
the cost of the proposed changes for insurers. This increased
cost will also, although in a reduced amount, impact upon the
cost to the NHS which faces claims from relatives of former employees
for damages for mesothlioma and other long tail fatal diseases
for uninsured periods.
The recent publicised case of Willmore v
Knowlsey Metropolitan Borough Council involved a 49 year
old claimant who alleged she had been exposed to asbestos when
a pupil at school. Given her age at death it would be perfectly
feasible that she had children under age 18 who would become
entitled to a bereavement allowance. Similarly it is possible
to envisage the situation where an individual could with the proposed
changes claim dependency where the deceased had been their main
carer prior to their own death (where previously no such claim
could have been made). It is clear that there will be additional
costs from the proposed changes which have not been taken in to
account in the Impact Assessment.
GRATUITOUS CARE
We agree that it is appropriate that where there
is an award made for gratuitous care it should be acceptable that
there be a personal obligation to account to the carer as opposed
to placing those damages in trust.
AGGRAVATED AND
EXEMPLARY DAMAGES
We agree that it is appropriate to limit the
circumstances in which exemplary damages are payable and it is
unfortunate that this terminology appears in a limited number
of statutes. However we question whether it is appropriate to
change the terminology to aggravated damages, which are already
the subject of some confusion. For example it is rare for aggravated
damages to be awarded in civil claims for injury and yet it is
relatively usual that such awards are made in civil employment
claims. Aggravated damages, save in employment claims, are awarded
in a relatively limited set of circumstances and we consider that
the inclusion of the terminology aggravated damages as opposed
to exemplary damages may solve one problem but create another.
CONTRIBUTORY NEGLIGENCE
We note that the proposals are now silent as
to when the issue of contributory negligence should be taken in
to account. We consider that provision should be made for this
issue to avoid ambiguity and scope for satellite litigation.
February 2010
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