Jersey: Update on X Children litigation and draft legislation

This blog is by William Audland QC of 12 King’s Bench Walk.

Following my earlier posts there have been two further developments this week.

The first reading of the Draft Damages (Jersey) Law 201 to set a statutory discount rate and to create a statutory power to make a PPO has been postponed from 4 December 2018 to 29 January 2019.

A settlement reached in the X Children case (which was tried this summer) was approved by the Royal Court yesterday: the terms of the settlement involved a lump sum and a PPO in respect of care costs but were otherwise kept confidential. The Solicitor General had intervened in the trial and gave evidence to the court that it had an inherent power to impose a PPO (although, this being a settlement, the parties were able to agree a PPO in any event).

The Draft Withdrawal Agreement – headlines for cross-border practitioners

It will not have escaped our readers’ notice that last week the UK and the EU released the draft text of a withdrawal agreement covering the UK’s exit from the EU. In a nutshell, the key provisions governing applicable law and jurisdiction are as follow.

Article 66 covers applicable law. It provides:

  • The Rome I Regulation (Regulation (EC) No. 593/2008) will apply in respect of contracts concluded before the end of the transition period.
  • The Rome II Regulation (Regulation (EC) No. 864/2007) will apply in respect of events giving rise to damage, where the events occur before the end of the transition period.

Article 67 covers jurisdiction. It provides (inter alia):

  • The Recast Judgments Regulation (Regulation (EU) No. 1215/2012) will apply in respect of legal proceedings “instituted” (presumably this means “issued”) before the end of the transition period.
  • The Recast Judgments Regulation will apply to the recognition and enforcement of judgments given in legal proceedings “instituted” before the end of the transition period and to authentic instruments formally drawn up or registered and court settlements approved or concluded before the end of the transition period.
  • These provisions also apply to the special agreement between the EC and Denmark (by article 69(3)).

Does the claimant need to plead and prove an applicable foreign law in cross-border claims?

This blog post is by Max Archer of 12 King’s Bench Walk.

In Iranian Offshore Engineering and Construction Co v Dean Investment Holdings SA & Ors [2018] EWHC 2759 (Comm), Baker J held that where a claim was governed by foreign law but the claimant had not pleaded or proved the content of that law, the court would apply English Law as per rule 25(2) of Dicey, Morris & Collins on the Conflict of Laws. Where a claimant has pleaded a viable cause of action and the defendants had not argued that it would be inappropriate to apply English law, it must apply as per rule 25(2). Continue reading Does the claimant need to plead and prove an applicable foreign law in cross-border claims?

Jersey: draft legislation on discount rates gathering pace

This is an update by William Audland QC to his recent blog on the Draft Damages (Jersey) Law 201 (available here).

Following my post earlier this week it now appears that the Draft Damages (Jersey) Law 201 -designed to set a statutory discount rate and to create a statutory power to make a PPO – is being expedited.

The Corporate Services Scrutiny Panel has already started a review of the draft Law. As part of that review, relevant practitioners and experts in Jersey have been invited to submit their views on the draft Law, and to certain specific questions relating thereto, by 9 November 2018.

The Draft Damages (Jersey) Law 201 has been lodged by the Chief Minister for debate on 4 December 2018.

Watch this space.

Periodical payments and discount rates: Jersey now leading the way?

This blog is by William Audland QC of 12 King’s Bench Walk.

Following a trial this summer, judgment is presently awaited on the following questions: (1) whether Jersey customary law permits the making of a PPO; and (2) the determination of the appropriate discount rates in Jersey. Judgment is awaited.

In a surprise development last week, the States of Jersey published the Draft Damages (Jersey) Law 201 which will:

  • set a statutory discount rate;
  • create a statutory power to award damages by way of a PPO to cover future care costs and lost earnings.

The discount rates proposed are expressly stated to have been:

  • informed by the consultation launched jointly by the MOJ and the Scottish Government into the discount rate, and which included detailed analysis by the UK Government Actuary’s Department into investment returns;
  • the product of a review conducted by the States of Jersey’s Senior Economist and the Director of Treasury Operations and Investments concluding that:
    • 15-year inflation data shows no long-term difference between inflation in Jersey and the UK respectively;
    • the UK Government Actuary’s Department’s analysis of investment returns in personal injury cases – to the effect that claimants in fact adopt a “low-risk” as opposed to a “very low-risk” strategy towards investment – was of equal validity in Jersey;
  • designed to fulfil the accepted principle of full compensation but acknowledged that there were differing views which had yet to be taken into account on certain issues (e.g. how to adjust for the management fees paid to investment managers and/or how to account for insurers’ concerns about the economics of the discount rate).

On that basis the appropriate discount rates would be:

  • where the lump sum is to cover a period of up to 20 years, +0.5%; and
  • where the damages will cover a period of more than 20 years, +1.8% (applicable to the whole of the award, not just the costs arising after the first 20 years).

From the date on which the Draft Law comes into force – that date being 7 days after the registration in the Royal Court if adopted by the States and sanctioned by the Privy Council – a court, including an appeal court, will apply the new provisions.

We will be keeping a keen eye on further developments in Jersey.

The Legal Systems of South Korea and England: A Comparison

Jihyun Kim, a lawyer practising in South Korea, recently spent a week at 12 KBW on an exchange programme organised by the Bar Council. In this blog post, Jihyun compares and contrasts the legal systems in South Korea and England, including the very different approaches to case management, costs and ADR. Continue reading The Legal Systems of South Korea and England: A Comparison

12 KBW International & Travel team produces new Accidents Abroad chapter for Butterworths Personal Injury Litigation Service

Members of 12 King’s Bench Walk’s International & Travel team have co-authored a wide-ranging update to the ‘Accidents Abroad’ section of Butterworths Personal Injury Litigation Service – a leading loose-leaf text for personal injury practitioners.

The update covers applicable law and jurisdiction in personal injury claims, the new Package Travel and Linked Travel Arrangements Regulations 2018, up-to-date guidance on gastric illness claims, and the international travel conventions. The new chapter appears in the most recent edition of the hardcopy text and is also accessible online for subscribers to LexisNexis.