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Scotland Focus

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

November 2018

Scottish Government

Consultation on Culpable Homicide (Scotland) Bill – this consultation was launched earlier this month and you can read our legal alert on this here.

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

The first steps towards implementing the Act have been begun with a consultation by the Scottish Government on the implementation of Part 1 of the Act (Success Fee Agreements).  The Act introduces caps on success fees and the consultation addresses what levels the caps should be set at. 

DWF is submitting a response to the consultation as well as working with FOIL to participate in its response.  We agree there must be a cap on success fees as statistics show that most claimant personal injury litigation in Scotland is concentrated among a relatively small number of firms and a cap is an essential safeguard in the public interest.  Success fees are charged to the claimant and do not form part of recoverable costs, so it is essential that claimants are protected.  Our response to the consultation is that the caps proposed by Sheriff Principal Taylor for personal injury claims (as set out below) are sensible and should be implemented:  

 

Proposed success fee caps for personal injury claims (all caps include VAT)

 

Up to 20% of   the first £100,000 of damages
Up to 10% for the next £400,000
Up to 2.5% of damages over £500,000

All damages paid by means of a PPO are excluded from the success fee calculation.

Damages (Investment Returns and Periodical Payments) (Scotland) Bill

The lead committee on this Bill (which will determine the way the discount rate is set in Scotland) – the Economy, Energy and Fair Work Committee at Holyrood - heard evidence at the end of October from the ABI and FOIL.  Suggestions were made about reviewing the notional portfolio and the suggested adjustments.  The evidence session can be viewed here.  

The report produced by the Government Actuary's Department (GAD) indicates that on present evidence the discount rate could be around 1% under the mechanism set out in the Bill.  However, if the two proposed adjustments for tax and investment advice of 0.5% were made, this would mean the Scottish discount rate is 0%.

The Scottish Parliament is expected to vote on the Bill at Stage 1 by December 21

On the horizon

  • Management of Offenders (Scotland) Bill – The Bill seeks to reduce the length of time most people with convictions have to disclose them and extend the length of sentence in relation to which disclosure is required from 30 months to 48 months.

  • Proposed Recovery of Medical Costs for Industrial Disease (Scotland) Bill - a Bill to enable Scottish Ministers to recover, from the party responsible for causing an industrial disease, certain costs incurred by the NHS in providing care and treatment to those suffering from that disease.  This has not progressed since the summer and looks likely to be dropped. 

Scottish Law Commission

Autumn newsletter can be viewed here

Main issues working on:

  • Insurable Interest Bill – consultation closed and responses being analysed

  • Automated Vehicles Consultation – consultation open until February 2019

  • Tenth Programme of Law Reform - ongoing till 2022

Legal Directories

Great results for the Scottish teams with strong rankings and comments.   

Professional Negligence

Legal 500DWF has particular expertise in solicitor negligence claims, and represents both insurers and insured firms via the Law Society of Scotland’s professional indemnity master policy panel. ‘Simply one of the best solicitors working in this field in Scotland’, Alison Grant leads the practice and handles a number of high value and complex professional negligence claims against solicitors and advocates. Legal director Lindsay Ogunyemi is ‘very responsive and happy to go the extra mile’, and represents a variety of insurers.

Chambers and Partners - Demonstrates further expertise in assisting legal professionals. Receives increasing mandates in the construction and engineering sphere, and its dedicated claims-handling service continues to provide rich resources.  Impressed clients note that the team is "very approachable and timely in responding."  Band 1 ranked Alison Grant is best known for her impressive track record defending complex claims against solicitors.

Personal Injury Defender

Legal 500 - DWF’s ‘highly regarded, competent and professional team of solicitors’ provides insurers and insured businesses with ‘incisive analysis, full and thorough advice’. Andrew Lothian ('a safe pair of hands') leads the insurance practice, and is noted for his ‘tremendous depth of both knowledge and experience’, which he applies ‘effectively and communicates well’. ‘A clear leader in insurance litigation’, Jill Sinclair heads the firm’s counter-fraud offering. The senior associate and ‘great counsel’, Caroline Coyle is another key practitioner, with extensive experience in high value catastrophic injury claims.

Chambers and Partners 2018 - Draws on expertise from offices around the UK to offer clients a full-service approach. Specialises in a wide variety of areas including catastrophic injury, motor, disease and abuse claims. Established counter-fraud team equipped to deal with dubious claims. Newly ranked lawyer Andrew Lothian is head of general insurance for DWF in Scotland. An experienced lawyer, he is recognised for his in-depth knowledge of policy coverage. Sources say: "Andrew is incredibly impressive. He has a fantastic grasp of the law in relation to insurance, and also has a very strong grasp of his client's interests"

Professional Indemnity Scotland

The Prescription (Scotland) Bill will make significant changes to the law of prescription. On 8 November 2018, the Bill passed Stage 3 in the Scottish Parliament.  The aim of the legislation is to increase clarity, certainty and fairness for those in dispute over particular rights and obligations.  The most significant change is an amendment to when the five-year prescriptive period will start to run. The Bill provides that the prescriptive period will not start running until the creditor is aware, or could with reasonable diligence have been aware, of the following three elements:

• The occurrence of loss, injury or damage;

• The act or omission which caused the loss, injury or damage; and

• The identity of the debtor in the obligation to pay damages for the loss, injury or damage.

If the Bill is unchallenged it will be submitted for Royal Assent and will likely become an Act before the end of this year.

For any further information please contact Alison Grant who heads up our Professional Indemnity team in Glasgow.

Scottish Child Abuse Inquiry

Phase 3 of the inquiry has commenced.  Evidence is to be heard in relation to residential childcare establishments run by non-religious and voluntary organisations. 

In the summer 2019, phase 4 of hearings will investigate residential childcare establishments run by male religious orders

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

Scottish Child Abuse

Phase 3 of the inquiry has commenced.  Evidence is to be heard in relation to residential childcare establishments run by non-religious and voluntary organisations. 

In the summer 2019, phase 4 of hearings will investigate residential childcare establishments run by male religious orders

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

Events

We are planning our events for 2019 and will make sure we send out details well in advance as we have had such a successful year with excellent feedback and support from clients.  .

In the meantime, our General Claims Conference is now available for viewing or showing to your teams and can be accessed via link and password below. 

https://vimeo.com/album/5477548

Password - DWFSCC

 

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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