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Scotland Focus

Our monthly round-up of developments dominating the legal landscape in Scotland.

August 2018

Scottish Claims Conference

On Friday 28 September we will be hosting our annual Scottish Claims Conference in our Glasgow office.  We have a wide variety of presentations from our own team members as well as some excellent guest speakers.  Topics will include:

  • Analysis of new legislation
  • An update on claims management regulation in Scotland
  • Trends and hot topics on the claims landscape
  • Case law update
  • Fraud focus

If you are able to join us you can book your place via our invitation link here

Scottish Government

Civil Justice Statistics in Scotland 2016-17

Just this week the Scottish Government released analysis of their court statistics that show the number of civil court actions being raised has reduced dramatically by over 40% since  2008/09.  However, the figures show personal injury actions rose quite sharply from 2008/09 and then fell around 2012 but have plateaued since then.  The more frequent use of the voluntary protocol and then the introduction of the compulsory pre-action protocol will undoubtedly have had an effect in reducing the growth in this type of litigation.  The overall increase in personal injury actions since 2008/09 is maintained at around 20% which is evidence that personal injury litigation continues to thrive in Scotland.  In England and Wales the number of personal injury cases also reached a peak in 2012 and while there was a fall thereafter this has picked up recently and increases have been reported over the last few years.

The absence of a protocol for damage claims, such as property damage and credit hire, may explain why these type of cases have risen by over 20% in the last year. 

With the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 to be implemented on a piecemeal basis over the next year or so it will be interesting to see if litigation rises with the advent of QOCS, where the risk of an adverse costs award will effectively disappear.

The full statistics can be viewed here.  

Case Law

Disease - Scots law governs asbestosis claim – In this case while the exposure to asbestos at work occurred in Scotland, the injury (asbestosis) did not occur until the deceased was resident in England.  The court confirmed what was thought to be the correct interpretation of existing law and allowed the claims to proceed under Scots law.  Lord Carloway emphasised:

"In establishing the lex loci delicti, the emphasis is on the place of the defender’s actings, and not the place where an injury emerges."  "In short, the focus is on the locus of the defender’s actions and not that where injuria meet damnum, thus giving rise to an action of damages (Rothwell v Chemical and Insulating Co [2008] 1 AC 281)."

James Docherty's Executors & Others v Secretary of State for Business, Innovation & Skills [2018] CSIH 57

Beauty claims - Hair washing in beauty salon link to stroke claims? – a legal action for £1 million has been raised by a woman who claims excessive washing which involved leaning over a sink six times caused a stroke. It is alleged Mrs Burns suffered a stroke following dissection of the vertebral artery, caused by trauma in the neck. This is thought to be the first case of its type in Scotland. 

We are aware of a similar case down south where a man suffered a stroke two days after visiting a hair salon where his hair was washed while his head was bent backwards over a basin.  Experts believe that as the neck extends, the vertebral artery can over-extend and become torn, either blocking it completely or causing a clot which restricts blood supply to the brain.   This case was settled before it reached court with the claimant receiving £90,000.

Beauty treatment claims certainly seem to be a growing area for claims and we will continue to monitor and report on developments. 

Professional Indemnity Scotland

 The importance of Letters of Engagement should not be underestimated. Not only are they key in terms of managing the relationship with your client including outlining the scope of your instruction, they are also essential in reducing the risk of any potential complaints or claims.

Letters of Engagement are useful risk management tools; the risk of a professional negligence claim can be minimised by a well drafted Letter of Engagement. For more information on well-considered engagement letters see Gail Cooke's article in this month's Journal here.
  
  
 
 
 


Counter Fraud Scotland

In our pre-litigation outsource five LVI claims were withdrawn, the claims having arisen from two separate incidents.  This resulted in savings in excess of £50,000 for our clients.  Of note, in a discussion with the pursuer's agents in one of the files following our repudiation, it was quite clear that they were aware of the minimal nature of the collision however had presented the claims in spite of this in the hope that payments would be made as primary liability was not in dispute.

 The six other claims were litigated and arose from three separate incidents.  Two of these were suspected staged and one was LVI.  There were a significant number of pre-litigation claims in the background, awaiting the outcome of these actions.  Following our investigations and presentation of evidence in support of our concerns which included forensic engineering evidence, intelligence and medical evidence, the claims were abandoned. This has resulted in savings in excess of £100,000 for our clients.

Our next Disrupt to Progress Roundtable will take place on 2 October and will focus on the role of medical experts.  We will have attendees from Medco, the medical profession in Scotland as well as representatives from legal, regulatory and consumer bodies. 

Scottish Child Abuse Inquiry

Criminal arrests made - last week it emerged that Police Scotland have arrested and charged nuns and a number of other former staff in an investigation into alleged child abuse at Smyllum Park. The inquiry had recently heard evidence from Daughters of Charity after notices issued under the Inquiries Act 2005 required them to provide information relating to Smyllum Park.

Lady Smith is expected to release a special preliminary report on Smyllum Park in coming weeks.

Phase 3 of the inquiry will commence on 23 October 2018.   Evidence will be heard in relation to residential child care establishments run by non-religious and voluntary organisations.  These will include:

• Quarriers Village

• The Aberlour Child Care Trust

• Barnardo’s

The inquiry will provide its final report as soon as reasonably practicable.

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

Contact

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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