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Scotland this month and looking ahead

Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.

June 2017

New legislation

We continue to monitor the progress of key legislation as they progress through the Scottish

Parliament.  There has hardly been a month that has passed over the last few years that has not seen some seismic changes to our civil justice system.  The key changes for the next six month period will be the passages of the bills detailed below. 

Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill

Current position - Stage 1 (Justice Committee), 13 June 2017

Key Facts – introducing QOCS, DBAs, regulation of success fee agreements

The Scottish Parliament’s Justice Committee has made a call for evidence from interested parties with evidence to be submitted by 18th August 2017.  We will be responding as part of FOIL and also on behalf of DWF.  Details of the issues to be addressed can be viewed here.

The Limitation (Childhood Abuse) (Scotland) Bill

Current Position – Passed Stage 3 on 22nd June 2017(unanimously).  There will now be a four week period before the Bill is submitted to the Queen for Royal Assent. 

Key Facts - The Scottish Parliament has voted to remove the three year limit on survivors of childhood abuse seeking civil damages in court.  The Limitation (Childhood Abuse) (Scotland) Bill will mean that cases arising from childhood abuse on or after 26 September 1964 will no longer face the barrier of the limitation period.  There will undoubtedly be real debate over evidence, witnesses and historic decided claims.

DWF is holding a conference in November to focus on the practical effects of the abuse bill which should come into force this year. 

Discount rate in action - Disease

The Damages (Personal Injury) (Scotland) Order 2017

The impact of the change in the discount rate became more apparent when our disease team were assessing quantum in a fatal mesothelioma claim with a loss of life expectancy estimated at around 11 years.  

Claimants - executors of the estate, various family members and a surviving widow with a claim for future loss of financial support.

Using the 2.5% discount rate, future loss multiplicand of £16,165, multiplier for 11 years was calculated at 9.63, reduced further to a multiplier of 8 to account for various co-morbidity conditions.  The future loss claim for financial support was therefore assessed at £129,321.  

Revised discount rate of -0.75, the future loss multiplier for 11 years is 11.797.  Using the same multiplicand of £16,165 increases this one head of claim to £190,700 – an increase of over £60,000 on the client reserve. 

While the discount rate for this particular claim was relevant to one head of claim only,  it is clear to see how the value of a claim will now increase substantially, particularly more so where other future losses are also being claimed.

Case review Local Authority liability– a reminder that the Scottish courts will not readily criticise local authorities in the prioritisation and allocation of resources.

Alan Cairns v Dundee City Council [2017] CSOH 86

A 59 year old claimant sustained injury when he fell on black ice in a car park near Dundee in December 2012. Parties agreed damages at £125,000 and the case went to trial on liability under Section 2(1) of the Occupiers' Liability (Scotland) Act 1960 alone. The Section provides:-

“The care which an occupier of premises is required, by reason of his occupation or control of the premises, to show towards a person entering thereon in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on them and for which the occupier is in law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.”

The questions for the court were;

(1)  whether it was reasonable for the council not to have a system of ice detection in place on Saturdays and

(2)  if such a system would have prevented the injury.

The claimant's Counsel submitted that it would have been reasonable for a system to have been in place before shops opened at 9 or 10am. Lord Woolman's view was that this approach did not consider the available resources and that this was a matter for the local authority. In addition, he said the proposed system was more stringent than that which was in place on a weekday. It was not known when the black ice was formed; therefore, the court was not able to determine whether or not the area would have been gritted before the claimant's accident.  Accordingly, the claimant failed in his action.

Counter Fraud Scotland

Induced accident

This month DWF's Scottish Counter Fraud team secured savings of around £30,000 for Horizon Insurance, having defended a suspected induced accident in the Glasgow area.

Read about it in our alert

TheCounter Fraud team will hold its next pioneering ‘Disrupt to Progress’ Forum in Glasgow on 5th July.  We are looking to bring together key industry figures from the world of insurance and representatives from consumer bodies.  The second event in the series will discuss the regulation of claims management companies operating in Scotland with a particular focus on holiday sickness claims.  The team are hoping to be joined by key representatives from IFED, IFB, ABI, the Law Society of Scotland, the Forum of Scottish Claims Managers and Police Scotland to discuss strategies to combat fraud.  Key personnel from Citizens Advice Scotland, ABTA, Which? and the Information Commissioner's Office have also been invited to participate.

We had a great feedback from all attendees at the previous forum and hope for the same level of collaboration going forward. View press release >

Please get in touch with Jill if you would like to attend future events or would like bespoke training for your teams.

New legislation

28th March - Discount Rate

The Damages (Personal Injury) (Scotland) Order 2017. View >

15th June - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

The FAI system is being modernised and major changes to the way fatal accident inquiries are carried out were introduced this month. View >

On the horizon

Other notable activity

DWF Scottish Annual Personal Injury Conference 2017

We will be hosting our annual Scottish Personal Injury Conference at our offices in Glasgow in September.  The topics covered will include personal injury litigation in Scotland and in particular the operation of the Compulsory Pre-Action Protocol, the All-Scotland Personal Injury Court, and the content of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.  For those reasons the theme of the conference will be “Personal Injury Claims in Scotland: a changing landscape”.

We have lined up a host of really exciting speakers and will be sending invites out in the next couple of months. 

Scottish Child Abuse Enquiry

The Inquiry has now added the timetable for Phase 1 of the hearings. This first phase of hearings have begun and will run until 12 July 2017. Details of those giving evidence and transcripts of the hearings can be viewed here

News and updates can be viewed via this link as the enquiry progresses.

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.