My Lords, I shall speak to my Amendment 73. It is an attempt not to change anything in the Bill, just to avoid some very unfortunate, superfluous wording. At the foot of page 9, it would delete the words,
“who has different financial aims”.
The effect of that deletion is to leave intact the wording cited just now—without what I would say are the offending last words—by the noble and learned Lord, Lord Hope. It leaves intact the wording that an,
“assumption that relevant damages are invested using an approach that involves … less risk than would ordinarily be accepted by a prudent and properly advised individual investor”.
At that point I would put the full stop, as it is clear and sufficient to achieve the intended purpose. Adding on that this prudent and properly advised individual investor “has different financial aims” at best adds nothing, and at worst contradicts the earlier provisions about the basis for the rate of return, which appear in new paragraph 3(2).
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There is a whole universe of investors with different financial aims. Which ones are relevant? The Bill gives no indication. Does this mean an override of the basis laid out in new paragraph 3(2)(c) for example, especially that the damages are to be,
“exhausted at the end of the period for which they are awarded”?
Is it saying that the different aim could be capital preservation? It does not exclude that and it does not say that it cannot be, even though the Lord Chancellor may start out with the basis following the wording in new paragraph 3(2). The later wording may imply that it can be tweaked, changed and that it is not fixed.
We probably all understand that the intention is to say, broadly, that more prudence than the norm is necessary because of the vulnerability of recipients, but it is still odd to try and define that with reference to what it is not, and with the only qualification being that it is not this thing that is different. Furthermore, there are among the universe of non-recipients of damages other vulnerable people. Does that mean the assumption has to be that the investment is more prudent than would be accepted by a properly advised and really quite vulnerable person, because that would make a difference to the rate of return that would be decided?
I suppose we can try to hang something on the fact that the provision says “ordinarily” and that this individual investor may therefore be ordinary rather than vulnerable, although that is not what the Bill says. However, it still does not say anything about what their “different financial aims” might be, or are allowed to be, and it still sets up the possibility that the aims encompass difference from those specified in the earlier paragraph.
I will not elaborate any more possible confusions, but these are words that add nothing but uncertainty and are best left out. The rest of the sentence makes the only point needed:
“less risk than would ordinarily be accepted”.
I appreciate that the letter from the Minister after Committee cleared up which was the intended interpretation as between the Bill and the language in the Explanatory Notes. The letter says that it is the Bill’s wording that is intended. That is a regrettable clarification because I thought the wording of the Explanatory Notes, with the extra comma in it—which seems to be what caused the changed interpretation—was actually better.
I can barely suggest that leaving out these words would be a concession because I am not trying to change the outcome, but I hope that at the very least a statement could be made in the Chamber that these words do not provide an override of the conditions laid down in the earlier new paragraph 3(2), to which I made reference. I am sorry to be pedantic but 30 years as a patent attorney teaches me that, if in doubt, leave it out.