Make sure judges are equipped for new PPOs, says Faculty

 

A QUALIFIED welcome has been given by the Faculty to plans for periodical payment orders, which will introduce major change to personal injury litigation.

Ministers propose to bring Scotland into line with the rest of the UK by giving courts power to impose PPOs without the consent of parties. Currently, payment by instalment can be, but very seldom is, agreed by parties.

PPOs are seen as an effective way of avoiding the risk that lump sum compensation, based on anticipated life expectancy, is proved to either overestimate or underestimate the needs of a pursuer.

“We are of the view that judicious use of periodical payment orders by the courts will permit a fair and efficient method of dealing with substantial future losses. The need for evidence about life expectancy will be severely restricted or removed,” said the Faculty in response to a Scottish Government consultation on draft legislative provisions.

“The Faculty…is concerned that the court should have the necessary specialist knowledge, experience, training, resources and infrastructure to permit these provisions to be operated successfully.

“The court is being put into a position where it has the responsibility to impose a settlement upon the parties…There will be an increased burden on the individual decision makers…It will require an increase in resources and specialist training for Sheriffs and Lords Ordinary.”

One area where the Faculty strongly disagreed with the provisions was in relation to a “bespoke, same-tier review process” for varying or suspending PPOs. The review would be by another sheriff or judge.

“We see no reason why the ordinary right to an appeal to a superior court should be removed…The review process envisaged by the draft provisions would leave litigants concerned with a PPO enjoying a less robust appeal process than litigants involved in all other types of cases. We consider that any review should be carried out using the standard appellate procedures (Sheriff Appeal Court and Inner House),” the Faculty stated.