Scotland this month and looking ahead
Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
Compulsory Personal Injury Pre-Action Protocol (CPAP) & New Simple Rules
28th November 2016
The CPAP will commence on 28th November 2016.
The rules will come into force on 28th November 2016 and will apply to certain damages claims up to the value of £25,000.
The Simple Procedure Rules 2016 come in to force on 28th November replacing the current Small Claims and Summary Cause procedure rules for most claims under £5000 (not injury). The Simple Procedure (Special Claims) Rules will be published in 2017 and will deal with complex and specialised claims such as personal injury actions, proceedings for aliment and actions for recovery of heritable property. View >
Counter Fraud Scotland
Lorraine Carolan, National Head of Counter Fraud and Jill Sinclair, Head of Counter Fraud Scotland recently hosted clients in London and Glasgow at our Late Claims Forum.
The team are hosting a number of forums and events over the next few months dealing with;
Credit Hire Fraud
Please get in touch with Jill if you wish to attend these or if you would like to arrange training for your teams.
Cases of Interest
The Scottish Counter Fraud team have secured another saving of £13,500 in respect of damages and costs for following the successful repudiation of a personal injury claim. This increases the total savings for this client made by DWF to £51,500 in the last 4 months. View >
While the market is still developing up here the tactics gleaned from our intel and profiling teams are enabling us to have continued success in this area.
As you will see we are gathering and building MI for Scottish claims which are enabling us to put strategic plans in place with clients for tacking this growing problem with fraud in Scotland. The influx of fraudulent claims in Scotland is only set to continue especially give n the proposed whiplash reforms down south
Sanction for Counsel
Caroline Coyle, DWF, recently successfully argued for sanction for Counsel to be allowed for the defenders in a summary cause case where we were alleging the Pursuer was a phantom passenger. The pursuer ultimately abandoned her claim but we were seeking the expenses of the cause to include counsel’s costs.
While this was a low value case the telematics evidence lodged was complex we were able to emphasise the importance of the case for the client in tackling fraudulent claims. The sheriff on the bench was completely in agreement and impressed with our presentation of the telematics evidence and agreed that in these circumstances the sanction of counsel was appropriate.
Red Star Pub Company v Scottish Power Limited  CSOH 100
We discussed last month whether the record fine of £1.75million of Scottish Power Generation would set the tone for higher fines in line with that down south following the £5 million fine of the Alton Towers operators. It raised issues about the extent to which the Scottish courts should be influenced by the Health and Safety Sentencing Guidelines applicable in England and Wales as opposed to the more modest level of fines traditionally imposed in Scotland.
On appeal the court reduced the penalty by £550,000. However, it is clear from the decision that the guidelines were heavily relied upon when determining the appropriate parameters. It would seem that until the SSC (below) set their own levels we will be deferring to those set down south. View >
The Scottish Sentencing Council (SSC)
The Scottish government set up the Scottish Sentencing Council (SSC) in October 2015 but they have not yet addressed the issue of health and safety sentencing guidelines. They have however announced their business plan which does not suggest this to be top of their agenda. Instead its first guidelines will cover death by driving, and environment & wildlife offences. This will take some time as the guidelines are not expected to be passed to the High Court until 2019.
Scottish parliamentary business
We have identified that the most notable proposals for the industry were likely to be the Limitation (Childhood Abuse) Bill which will remove the 3 year limitation period for victims of historic child abuse and the Expenses and Funding of Civil Litigation Bill. It seems the Parliament are pushing ahead full steam with their commitment to abuse victims.
Headline – Limitation period removed for abuse victims
Legislation to remove the three-year time limit that prevents childhood abuse survivors from seeking civil damages in court was laid down on 17th November.
The Limitation (Childhood Abuse) (Scotland) Bill – the Scottish Government’s first piece of legislation of the 2016-17 Parliamentary year – is part of Ministers’ wider commitment to fulfil the recommendations from an extensive independent consultation with survivors of childhood abuse conducted in 2014.
Key Points of the Bill;
- it will amend the Prescription and Limitation (Scotland) Act 1973
- applies to abuse against any child regardless of the setting where the abuse took place
- goes further than other jurisdictions by including sexual, physical and emotional abuse
- enables cases previously raised but unsuccessful due to ‘time-bar’ to be re-litigated whether they were determined by the court or settled by both parties without damages paid.
- does not apply to abuse before 26 September 1964
Concerns for the industry
- Modifying the law on limitation will not necessarily enable every cases raised by pursuers in child abuse cases to proceed. While it will remove the prerequisite to overcome the time-bar hurdle it will not resolve the underlying issue that the evidence available may be insufficient to allow those intended claimants to prove their cases.
- It is oppressive to a defender to allow an action to be brought long after the cause of action arose. The delay will undoubtedly affect the availability, quality and existence of any evidence necessary for the defender to have a fair trial.
- The legislation seems unnecessary as there already exists a balanced limitation system, in which judges can choose to waive the three year limitation period. The courts have discretion by virtue of section 19A of The Prescription and Limitation (Scotland) Act 1973 to allow claims to proceed out with the three year limitation period should “it seem equitable to the court to do so”.
The SNP administration has cross party support on this issue in the Scottish Parliament and it’s likely this Bill will pass through with relative ease.
Government Consultations / Legislation
DWF’s Caroline Coyle sits on the FOIL Sector Focus Team for Costs and Funding and has responded to the consultation.
The Government have confirmed that around thirty responses were received to the consultation on court fees and the Minister is currently considering the way forward.
Insurance Act 2015 – what’s does it do?
The Act introduces five key changes in the following areas that insurers, policyholders and insurance brokers alike should be aware of:
1) Fair presentation of risk;
3) Warranties and Conditions;
4) Fraudulent claims and
5) Contracting out.
On the horizon
Scottish Civil Justice Council (SCJC)
Personal Injury Committee
There is still a great deal of activity in this committee. The new CPAP commences on 28th November and this will just be the beginning of the compulsory protocols that will be brought in over the next year.
- Clinical Negligence Pre-Action Protocol
The Committee agreed that the introduction of a compulsory Clinical Negligence Pre-Action Protocol should be postponed to allow the trial of the voluntary protocol with the Central Legal Office time to bed in and for it to be monitored and evaluated.
- Compulsory Disease Pre-Action Protocol
A working group, which will meet in early 2017, was set up to develop a compulsory industrial disease pre-action protocol for the consideration of the full Committee.
SCJC Working Group - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016
The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 received Royal Assent this year.
1st December 2016 is the day appointed for the coming into force of the following provisions of the 2016 Act—
section 13 (jurisdiction in relation to inquiries); and
section 14 (inquiry into more than one death).
The important changes re Sheriff Determination & recommendations – are contained in s.26. These rules have not yet been finalised.
At the most recent meeting the minutes noted that the group were working towards 1st May 2017 as the proposed date for implementation with the new draft rules to be placed before them for approval in March 2017.
The Access to Justice Committee – the committee has now approved a draft timetable and draft rules for special claims under the new simple procedure – a formal consultation process will take place with the hope they will be implemented in the spring of 2017.
Scottish Law Commission
The consultation on the law of prescription closed on 23 May and the Commission are now analysing the consultation responses. Thereafter, a report and a draft Bill will be published in the first half of 2017.
Other notable activity
ABI – Scotland
DWF continue to engage with contacts at the ABI and the Scottish Government in efforts to influence and challenge proposed changes that will affect the Insurance industry in Scotland. Recent meetings suggest that we will be able to present to the Government our concerns regarding certain aspects of the proposals contained in the Expenses and Funding of Civil Litigation Bill.
Scottish Child Abuse Enquiry – Update
At the time of announcing The Limitation (Childhood Abuse) (Scotland) Bill, Deputy First Minister John Swinney also provided an update to the enquiries progress. He announced that the terms of reference would be amended to make clear its scope includes the abuse of children in care wherever that occurred, though it will not be extended further to include all allegations of abuse in non-residential settings. He also pledged a formal consultation with survivors and other relevant organisations focused specifically on the issue of redress out with the courts. View >
For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate on 0141 228 8132 or Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196
This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.