Our monthly round-up of developments dominating the legal landscape in Scotland.
Implementation - The Scottish Government recently consulted on proposals for DBAs and is likely to issue a response that should include timescales for implementation. It is unlikely QOCS will be introduced this side of the summer recess and is more likely to be late 2019. All of these timescales are of course very much dependent on how much time is required for Brexit.
CMCs - This month saw the first regulation of CMCs in Scotland with the FCA taking over regulation UK-wide from 1 April. DWF worked with the ABI to persuade the Scottish Government to extend the regulation of CMCs to Scotland. Barbara Kubis-Labiak, technical specialist at the FCA, recently told the Insurance Times Fraud Charter that the FCA will do all it can to “empower the consumer” and encourage claimants to claim directly, rather than seeking aid from CMCs. Barbara is a regular attendee at Scottish DWF events: she spoke at our Claims Conference last year and more recently at our Disrupt To Progress Roundtable in March.
Discount Rate Scotland
The Damages (Investment Returns and Periodical Payments) (Scotland) Bill recently completed stage 3 and was approved by the Scottish Parliament. The Bill is now going through a process with the law officers to check competence before Royal Assent. The Act will then require a commencement order to take effect which will likely take several months. This will be followed by a 90-day review period for the Government Actuary to determine the discount rate which is likely to take us to September/October.
In comparison, the discount rate review started in England and Wales on 19 March and must end by 5 August.
Our legal alert on the key issues can be viewed here.
The Act, which received Royal Assent on 18 December, is principally intended to clarify the period from which time starts to run where a person seeking damages is not fully aware of the circumstances of their loss or who caused it. However, it also amends the law around the 20-year period when an obligation is finally extinguished, the law on relevant claims, including in situations of insolvency, the ability to contract out of the Act and on the burden of proof.
Despite over four months since Royal Assent, there is still no firm timetable on implementation but we believe that regulations may be out before summer recess.
Stuart McMillan MSP has secured sufficient support for his proposed Bill which would: “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 would not be applicable on a retrospective basis which had been mooted in an earlier version of this Bill. Stuart McMillan now has until June 2020 to lay his Member's Bill before Holyrood.
Cases of Interest
Action of damages – Collateral challenge to criminal conviction – Whether abuse of process
A patient raised an action of damages against his GP for psychological injury. The pursuer had been driving a car that struck two pedestrians within the confines of a pedestrian crossing, killing one and seriously injuring another. He alleged the collision occurred when he lost consciousness as a result of a vasovagal attack caused by the combination of medications he had been prescribed by his GP. At the criminal trial a special defence of automatism was rejected by the jury who ultimately convicted him of offences under the Road Traffic Act 1988 s.1 and 1A.
The pursuer tried to use the same argument in this civil action for damages which ultimately failed as the success of his case would depend on him proving he had suffered the vasovagal attack – a position the jury had already rejected in the criminal case. Such an argument was contrary to public policy and the action was dismissed.
Policy coverage – "use" of vehicle
The Supreme Court decided that use of a vehicleunder the Road Traffic Act 1988 did not cover the claimant repairing a vehicle.
In this case Mr Holden set fire to his vehicle while he was repairing it on his employer's premises. The fire caused £2 million of damage. His employer's insurers paid out and sought recovery from Mr Holden's car insurers (Churchill). Churchill argued their policy did not extend to cover this type of third party liability cover. The Supreme Court, with Lord Hodge providing the only judgement, accepted this position.
"A vehicle being repaired on private property is not being “used”.
Furthermore, although the attempted repairs may have arisen out of the use of the car, the property damage did not. It was Mr Holden's alleged negligence in carrying out the repairs, not the prior use of the car as a means of transport, that caused the relevant damage."
Scottish Abuse Claims
Scottish Child Abuse Inquiry - the inquiry continues to hear evidence at Phase 3 of its public sessions. Phase 4, looking at residential childcare establishments run by male religious orders, will commence on 4 June 2019. News and updates can be viewed here.
Abuse pre-action protocol –The working party met earlier this month and we understand that once they are satisfied with the draft protocol they are looking to circulate this for comments. We hope we can become involved at this stage to present our opinions.
Scottish Government Redress Scheme - On 30 January 2019, the Scottish Government expanded on its commitment to introduce a financial redress scheme for survivors of childhood abuse in care in Scotland.
If you wish to discuss training for your teams or consider outsourcing abuse work please contact Andrew Lothian who heads up our Scottish abuse team.
25 June - Disrupt to Progress
Counsel Seminar – Prescription - date tbc
Save the date - We are pleased to let you know we will be holding our Scottish Claims Conference again this year on Thursday 12 September 2019. Invitations will be sent out in the next few months.
Counsel Seminar – Fundamental dishonesty in Scotland – date tbc
For further information please contact:
Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305
Alison Grant, Partner, Professional Indemnity (Scotland) on 0141 228 8127
Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196
Caroline Coyle, Senior Associate and Professional Support Lawyer, Insurance on 0141 228 8132
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.