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Scotland

November

Headlines - CMC Regulation in Scotland

We were delighted to receive notification from the Scottish Government that they have agreed with the Westminster Government to take forward regulation of claims management companies (CMCs) in Scotland.  We have tirelessly campaigned for CMCs to be regulated and are convinced this will have a positive impact on the Scottish personal injury claims market. 

Andy Lothian  DWF Head of General Insurance in Scotland, gave evidence to the Justice Committee of the Scottish Parliament in September on the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.  During his evidence Andrew argued that regulation was needed for CMCs in Scotland.

Read our comprehensive alert and the letter from Annabelle Ewing MSP to the Justice Committee of the Scottish Parliament confirming the position below. 

https://sites-dwf.vuturevx.com/18/1481/november-2017/cmc-regulation-update.asp

http://www.parliament.scot/S5_JusticeCommittee/Inquiries/20171120MfCSLAtoMM.pdf

We are looking to host a roundtable discussion in February next year to look at the implications of regulation of CMCs in Scotland how regulation of CMCs currently works in England and Wales. Please get in touch if you would like to attend.

Abuse Claims - a new market

This month we hosted the DWF Scottish Abuse Claims Conference to look specifically at The Limitation (Childhood Abuse) (Scotland) Act 2017 which is now in force.

We had an excellent array of clients and speakers from our Scottish and national abuse teams who provided guidance in the handling of abuse claims.  If you or any of your teams need training or more information on handling these type of claims, please get in touch with Andy Lothian.

Claims Activity?

Since the Act came into force in October we have been assessing what impact it might have on the number of abuse claims being brought. There has been talk of some firms having thousands of claims ready to intimate. As things stand we have not seen any evidence that the new Act has any immediate impact on claims numbers, although we have seen the setting up of specific web sites dedicated to attracting abuse claims from some pursuer firms.

We mentioned last month the Supreme Court's decision in Armes, where a local authority can now be held vicariously liable for abuse of a child by a foster parent.  It seems that this decision has prompted some claims activity and we have heard this week that already Digby Brown Solicitors has intimated claims against Glasgow City Council for alleged abuse victims against foster carers. Find out more.

You can read more about the decision in Armes in our update:

Vicarious liability extended liability of local authorities for abuse by foster carers

Scottish Child Abuse Inquiry

The Inquiry is moving now into Phase 2. and will examine evidence it has ingathered, researched and analysed relating to residential child care establishments run by Catholic Orders. This phase will start with a case study about residential child care establishments run by the Daughters of Charity of St Vincent de Paul. The hearings will begin on 28 November 2017 and are expected to run until Wednesday 20 December and continue again on 9 January 2018. The case study will end no later than 26 January.

Details of those who have given evidence and transcripts of the hearings can be viewed here.

News and updates can be viewed via this link as the enquiry progresses https://www.childabuseinquiry.scot/

Scottish Government Activity

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

Stage 1

 Following Andy Lothian's evidence session before the Justice Committee of the Scottish Parliament on the above Bill, the Committee has heard evidence from a variety of people including Sheriff Principal Taylor, Quantum Claims and this week Annabelle Ewing MSP.  The Bill will, if passed, introduce QOCS and DBAs into Scotland.

The announcement that there is to be regulation of CMCs in Scotland is a necessary step and a major boost. We will continue to voice the concerns of the insurance industry about the Bill to the Scottish Government.

Read more detailed submissions about the concerns for the industry in our response to the Scottish Government's call for evidence here

Notable Case law

Professional Indemnity – Prescription

The Supreme Court has today handed down its long-awaited decision on prescription in Gordon's Trustees v Campbell Riddell Breeze Paterson LLP [2017] UKSC 75

The court refused the appeal, upholding the decision of the Inner House.

Facts -The Pursuers, who were trustees of three fields of farmland, raised an action against their former solicitors, the Defender, on 17 May 2012, in relation to alleged defective drafting of notices to quit. The court held that the trustees suffered loss on 10 November 2005 when they did not obtain vacant possession and there was no postponement under s.11 (3) the Prescription and Limitation (Scotland) Act 1973 because the trustees were aware that they had suffered detriment when they did not obtain vacant possession on 10 November 2005. In any event, they were actually or constructively aware that they had incurred legal expenses to obtain such possession by 17 February 2006.  As such, it was not a question of latent damage under s.11(3), and was instead an example of patent damage under s.11(1) of the Act.

This is undoubtedly a welcome decision for solicitors defending professional negligence actions, however, the court was careful to caveat its decision by reference to the Scottish Government's forthcoming Bill to reform the law of prescription in Scotland.

" Whilst this conclusion may lead to hard cases being common, there are live proposals for law reform. Following a Scottish Law Commission report, the First Minister of Scotland announced on 5 September 2017 that the Scottish Government intended to bring forward a Bill to reform the law of prescription in Scotland. It will be for the Scottish Parliament to decide whether the Commission’s proposals for reform of the discoverability test in s11(3) of the 1973 Act should be adopted."

In July, the Commission published a Report on aspects of the law of prescription. A Bill to implement this Report was announced in the Scottish Government’s Programme for Government 2017-18.

Scottish Civil Justice Council (SCJC)

Consultation on Fees of Solicitors

The Scottish Civil Justice Council (SCJC) has begun a consultation, on the review of solicitors’ fees in the Scottish civil courts.  The consultation seeks views and evidence from stakeholders on the fees for solicitors that can be recovered under an award of expenses made in the Court of Session, Sheriff Appeal Court and sheriff court.  The Council’s Costs and Funding Committee will be considering the fees prescribed and whether there should be any increase or reduction in the current levels.

Given the changing claims landscape and the anticipated introduction of DBA's and QOCS next year we felt this consultation was perhaps pre-emptive and that it may have been more effective when the Act implementing QOCS comes into force and we see how pursuers expenses are effected.  That said, it is important that the level of judicial fees pursuer solicitors recover is kept under close scrutiny and we co-ordinated and submitted the FOIL response and also a response on behalf of DWF.  Responses can be viewed here and if you would like a copy of the DWF response please contact Caroline Coyle below.

For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate, Professional Support Lawyer Insurance on 0141 228 8132 or Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196

 

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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.

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