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Anthony Tortolano v Ogilvie Construction Limited [2013] CSIH 10


Reclaiming Motion: Inner House: The pursuer at first instance enrolled a motion to amend the pleadings relative to the assumed rate of return on investment of damages in terms of section 1 of the Damages Scotland Act 1996. The amendment was to the effect that the appropriate rate of return for calculation of future wage loss in that particular case was a figure below the 2.5% prescribed by section 3 of the Damages (Personal Injury) (Scotland) Order 2002. The amendment, so far as it concerned the rate of return was refused. Reclaiming: the reclaimers argued that the Lord Ordinary had erred in his interpretation of s1 of the 1996 Act; the English Court of Appeal cases, from which the Lord Ordinary had drawn support were decided incorrectly and; the Lord Ordinary had placed too much weight on certainty in litigation. Held: reclaiming motion refused; there required to be something special or exceptional about the case before a different rate would apply; the pursuer's case was not such a case; a purposive approach should be taken to the interpretation of the section which included the need for certainty and avoidance of litigation; the amendment amounted to a general attack on the statutory discount rate. Obiter: any such attack should properly be made by political process or judicial review.