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Scotland – the end of an exciting year!

In a year where there has been the biggest upheaval in the Civil court system for decades, Caroline Coyle takes a look at what has been going on across Scotland in the Government, Courts and Scottish Civil Justice Council and provides some insight into what we can look out for in 2016.

Scottish Government Consultations/Bills

Stuart McMillan’s Private Members Bill to recover asbestos related NHS treatment costs has not been progressed.  He has indicated an intention to bring his Bill forward but it’s unlikely it will progress until after the election next year.  The ABI have met with Mr McMillan but no agreement has been reached regarding a non-legislative alternative to his Bill on the recovery of NHS costs in asbestos cases. 

The proposed Damages Claims (EU Directive on Safety and Health at Work) (Scotland) Bill which sought to reverse the impact of s.69 of The Enterprise and Regulatory Reform Act 2013 (see SARAH section above) along with the Culpable Homicide (Scotland) Bill have run out of time and have been dropped.

According to the Civil Law Policy Manager at the Scottish Government, there are no plans to bring forward the Damages Bill at present.

The Inquiries into Deaths/Fatal Accidents (Scotland) (Government Sponsored) Bill was published on 20 March 2015 and is set to strengthen the current Fatal Accident Inquiry (FAI) process in Scotland. The Bill will come into force by the end of 2015.

At the beginning of the year the Scottish Government announced a consultation on proposals for primary legislation on the expenses and funding of civil litigation in Scotland following Sheriff Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland.  There was a vast array of responses from across the legal and insurance industry.  The Forum of Scottish Claims Managers (FSCM) met with Hazel Dalgard, Stephen O’Connor and Michael Green from the Scottish Government on 3rd September 2015.  The draft Bill will not be introduced in this parliament but is scheduled to be a first year (priority) Bill in the new parliament following the elections in May 2016.

The Scotland Bill passed its final stage in the House of Commons on16th November 2015.  This marks a significant point in its journey to become law.  The Bill will now go to the House of Lords. The passing of the Bill means the all-party Smith Commission agreement made after the independence referendum last year is close to being put into law.  Scottish Secretary David Mundell said: “The government’s amendments will strengthen the Scotland Bill’s provisions and clarify its delivery of the Smith Commission agreement.”

Case law

Expenses

Bent v Trevett (Stirling Sh Ct)

The solicitor for the defender argued that expenses should be restricted to those recoverable under the protocol. The sheriff was not in agreement and commented on the insurers’ failure to abide by the protocol and failure to respond timeously to a letter of claim as factors for awarding court expenses.

Fraud

McIlduff v. Aviva.  (not reported)

Sheriff Lindsay Wood did not consider there was a collision between the vehicles. He also doubted that the pursuer sustained any injury. He granted Absolvitor. This is a positive step for the judiciary in Scotland and hopefully it will see the start of more cases and credibility of pursuers being brought into question.

Animals (Scotland) Act case

Ferguson v Ferguson [2015] CSIH 63, IH (Ex Div), Lord Eassie, Lord Brodie, Lady Clark of Calton, 14 August 2015

The Pursuer had been bitten in the face by a dog and was left with a visible scar.

A Jury valued solatium at £5,000 in P’s action against her brother in law (B) for a breach of the Act but found 85% contributory negligence (for putting her face close to the dog) and reduced the award to £907.50.

The jury had been entitled to accept the evidence and find that P had behaved in a provocative manner. There was strict liability on dog's keeper because dogs deemed likely to injure by biting, that provoked dogs might bite was consistent with everyday experience, and the reasonable person, taking proper care for their own safety, ought not to place their face in close proximity to the teeth of even a familiar and usually well behaved dog;

A judicial award would have been likely to have been in excess of £10,000, but although the jury's award fell below 50 per cent of a proper judicial assessment, that did not have the result that a new trial had to be ordered;

A wide margin is to be allowed between jury awards and what might be considered an appropriate judicial award, and the court was not entitled to interfere with the jury's award.

Liability for Pedestrians (Murray v Jackson discussed)

Mcreery v Letson & others (2015) CSOH 153

This judgement came out on 10th November 2015 and involved a pedestrian who was knocked down by a van when crossing the road from behind a bus. The judge held the pursuer and the defender were equally to blame for the accident. In his written opinion Lord Ballantyne said:

As in Jackson v Murray this is not a case where the Pursuer stepped directly into the path of the defender who was travelling at a reasonable speed and failed to take action as promptly as he should. The causation of the injury in the present case depended upon the combination of the pursuer’s attempting to cross the road when she did, and the defender not having proper regard to the potential dangers facing him and driving at an excessive speed in all the circumstances. If she had waited till he passed she would not have been run down. Equally if he had had regard to the potential hazards and slowed down he would not have hit her. I believe that a 50/50 apportionment is appropriate.

Scottish Civil Justice Committee (SCJC)

The Courts Reform (Scotland) Act 2014 gives the Court of Session the power to introduce rules requiring parties to follow compulsory pre-action protocols before proceedings are raised.  The Personal Injury Committee (PIC) set up by the SCJC when they met on 8th June 2015 agreed that a compulsory PI pre-action protocol should be applied to all proceedings in local sheriff courts as well as the all-Scotland PI court.

The reference group met on 25th August 2015.  A policy document was to be produced by the SCJC Secretariat on compulsory pre-action protocols for discussion at the next meeting on 9th November 2015. This is not available for the public as yet.  The Committee aim to develop rules for the introduction of compulsory pre-action protocols ideally no more than one year after the establishment of the all-Scotland personal injury court. 

Stephen O’Connor (Manager of the Expenses and Funding of Civil Litigation Bill Team, Scottish Government) provided the Costs and Funding Committee (CAFC) with an oral update from the Scottish government.  In particular, he advised that the analysis of the consultation on Expenses and Funding of Civil Litigation Bill was produced in August 2015 and the Taylor Bill is not within the Scottish Governments legislative programme for 2015/16. This may be considered within the year 2016/2017 however, the Scottish Government plan to engage with stakeholders regarding aspects of the proposed Bill. 

Other notable activity

Courts Reform (Scotland Act) 2014

The new reforms are now well underway.  Interestingly the general department in the Court of Session advised that prior to 22nd September there was a mad rush to get actions into the Court of session.   In excess of 400 actions were signetted in one day whereas the general department normally signets 200 actions each month.

Many actions have now been raised in the new all-Scotland Personal Injury court.  We have not heard of sanction for Counsel being applied for at this stage and it will be interesting to see how this develops. 

In January 2016 the Sheriff Appeal Court will start hearing civil appeals; both small claims and summary causes will be replaced by the new simple procedure and the Rules Rewrite committee will continue with their comprehensive rewrite of all of Scotland civil procedure rules.

HSE Scottish Prosecution Statistics

Statistics released by the HSE confirmed that prosecutions in Scotland following alleged breaches of health and safety legislation are sharply increasing. In the last year the Crown prosecuted 72 such cases in Scotland, representing a 49% increase on the previous year.  Prosecutions had a 97% successful conviction rate.

This is against the background of 142 workers being fatally injured in the UK during 2014/15 – an increase of 4.4% from the previous year. In the previous five years the numbers had been reducing. Non-fatal employee injuries continued on a downward trend with a 3.3% drop from the previous year. Pursuing perceived health and safety breaches is clearly an increasing priority for the authorities and it would not be unexpected to see prosecution levels being maintained or increased in the coming year.

With fines for breaches also increasing and the establishment of the new Scottish Sentencing Council, should businesses need another reminder to prioritise health and safety – this is it.

Contact

For further information please contact Caroline Coyle, Associate on 0141 228 8132.

By Caroline Coyle

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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