Response by the Civil Sub-Committee of
the Council of Her Majesty's Circuit Judges to the Ministry of
Justice consultation paper on the Civil Law Reform Bill
1. Our general comment about the Bill is
that the method of amending legislation by amending individual
sections and subsections in an existing statute is cumbersome
and inconvenient. It would ease the task of lawyers, judges and
members of the public wishing to understand legislation if, where
a previous Act is undergoing extensive amendment (as the Fatal
Accidents Act 1976 is on this occasion) the previous Act
were to be repealed in its entirety and replaced by a new Act
incorporating the amendment.
2. Alternatively, a simpler and less expensive
alternative would be to reproduce in full any section of an Act
which is amended in a schedule to the amending legislation with
all amendments accurately incorporated.
Damages: Questions 1-3
3. We suggest that section 3 subsection
(1) and subsection (2) up to and including the word "insert-"
are redundant and that subsection (3) of section 2 should
continue after (3B) with (3C), (3D) and (3E) with the remaining
sections being renumbered.
4. In section 1 of the Act we suggest
that, in order to achieve consistency, the test of whether a person
should be regarded as maintained by the deceased should mirror
that in the Inheritance (Provision for Family and Dependants)
Act 1975.
5. We consider it may be helpful (and that
it is logical) to include in the part of the Bill dealing with
damages for gratuitous care a provision enabling the court, if
it sees fit, to make a direct award of damages to one or more
carers despite their not being parties to the action.
6. We have no views on the application of
aggravated damages in Scotland.
7. We have no comments on the impact assessment.
Interest: Questions 1 and 2
8. We consider the drafting of section 12 giving
powers to bring in secondary legislation is far too widely drafted
and substantially and undesirably restricts the discretion of
judges to award or not to award interest. Secondary legislation
should merely enable the rates of simple and compound interest
to be fixed.
9. We have no comments on the impact assessment.
Distribution of Estates: Questions 1 and
2
10. We have no comments either on the draft
bill or the impact assessment.
Rights of Appeal
11. We have no comments either on the draft
bill or the impact assessment.
8 January 2010
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