It has long been a source of irritation that, Scottish
legislation did not allow us to reduce benefits and NHS charges
repayable to the Compensation Recovery Unit in line with any
deduction from a principal award for contributory negligence. Even
in the event of a pursuer being found 50% to blame for his or her
own accident, the defender was still obliged to repay all benefits
and NHS charges in Scottish claims.
However, as of 29 January 2007, it has been possible to at least
reduce NHS charges in line with any finding of contributory
negligence, thanks to the terms of the Personal Injuries (NHS
Charges) (Accounts) (Scotland) Regulations 2006 - which evidently
were not drafted with the intention of the title tripping off the
tongue...
However, there are two key points to note. The first is that
these Regulations make no change in relation to recoverable
benefits, which remain payable in full.
The second point is the question of how contributory negligence
needs to be decided upon to satisfy the Unit. If there is a finding
by a court, or a Joint Minute agreed by parties which disposes of a
court action, clearly this will suffice. This will mean that it is
not always to the benefit of a defender's insurers to have Decree
of Absolvitor awarded, and maybe sometimes be wiser to address any
split of liability decided upon expressly. If the case goes
formally to mediation or alternative dispute resolution, the CRU
will rely upon the formal outcome of this.
But what of the situation where parties reach an agreement by
negotiation prior to litigation being raised which reflects a
deduction for contributory negligence? Is it necessary to raise a
friendly action and quickly conclude it by Joint Minute simply to
have the court endorse a contributory negligence agreement? It
seems possibly not.
If parties enter into a signed agreement, in a fair manner,
which shows that the claimant and the compensator (not necessarily
the same as the defender) agreed that damages payable were to be
reduced to reflect contributory negligence, and states how that
agreement was reached, the amount of damages payable on a full
liability basis, the proportion by which damages were to be reduced
and the names of those involved in the settlement procedure, then
this may well suffice even where arrived at by informal
correspondence, discussion and negotiation rather than by formal
mediation or ADR.
We would be most interested to hear from any of you with past
success in putting this into practice, and will be glad to share
your experiences with others in future editions of SMIB!
Contributed by Lesley Allan