Commentary on Sections Section 1 - Assumed return on investment
Section 1, subsection (1) inserts a new section C1 into the 1996 Act to replace the existing section 1 as it applies to Northern Ireland (which is repealed by subsection (2)), so as to remove the Department’s current role in setting the discount rate.
Subsection (1) of new section C1 provides that, in an action for personal injury, the court must take into account the rate of return set by the rate-assessor in determining the return a claimant is expected to receive from investing a sum awarded as damages for future pecuniary loss. This duty is subject to any rules of court made for the purposes of the section (although no such rules have been made to date under section 1 of the 1996 Act as it currently applies). Subsection (2) preserves the ability for a court to take a different rate of return into account if any party can show that it is more appropriate in the circumstances of the case. (However, there is case law, the decision of the Court of Appeal, England and Wales in Warriner v Warriner, which constrains the use of this power to cases with special features.)
Subsection (3) introduces new Schedule C1, which is to be inserted in the 1996 Act (see further below).
Subsection (4)(a) provides that the rate-assessor is the Government Actuary and that in the event the office of Government Actuary is vacant, the rate-assessor will be the Deputy Government Actuary. Subsection (4)(b) gives the Department of Justice a power by regulations (subject to the draft affirmative procedure) to appoint a person other than the Government Actuary to be the rate-assessor, as well as somebody to deputise for that person (subsection (5)). Subsection (6) provides that the Department must obtain the agreement of the person to be appointed and the person who is to deputise, before making regulations under subsection (4)(b).