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Scotland this month and looking ahead

In our monthly round-up of developments dominating the legal landscape in Scotland, Andrew Lothian and Caroline Coyle look at:

- Cases of interest
- Government Consultations / Legislation
- Scottish Civil Justice Council
- Other notable developments

Cases of Interest

Expert Evidence: The ripple effects of the decision in Kennedy v Cordia (Services) LLP (2016) continue to be discussed in courts with reference to the admissibility of expert evidence. In addition to dealing with negligence the Supreme Court also gives valuable guidance [paragraphs 34 to 73 of the judgment] as to expert evidence, particularly non-medical experts, including: admissibility; making sure the expert performs his role; policing performance of an expert’s duties; and economy in litigation. Read more in our recent update.  

The case has been referred to in recent court cases one of which was Windsor v NWH Group Limited (2016) SC EDIN (unreported) where the pursuers sought to challenge the engineer’s evidence from the defenders in a low speed impact case.

Expenses: In Gibson v Menzies Aviation (UK) Ltd (2016) the Sheriff modified the pursuer’s expenses by two thirds based on the pre-action behaviour of the pursuer’s solicitors. While it is recognised this decision is case specific there are indications that the factors below were important when determining that the pursuers had acted unreasonably:

  • the defenders requested information to value the claim on a number of occasions

  • liability was admitted

  • the action was raised precipitately

  • the pursuer did not disclose information sought until after raised proceedings

Procedure - summary decree: Hall-Craggs & Ors v The Royal Highland Show & Agricultural Society of Scotland & Anor (2016) was a tragic case where a young boy died while at the Highland Show with his father. The first defenders operated the Highland Show and the second defenders were in charge of the parking arrangements. The pursuers argued that as the first defenders had been convicted of a breach of the Health and Safety at Work Act 1974 (“the Act”) they were entitled to summary decree. In assessing the merits of the motion Lady Wolffe considered both the “obviousness of the danger of the bollards” and the conviction of the first defenders in December 2014 under the Act. Lady Wolffe concluded that the test for summary decree was a high one and that on the material before her the test had not been met.

Fire Service Liability: AJ Allan (Blairnyle) Ltd v Strathclyde Fire Board (2016) discussed whether the fire service was liable in damages when a fire, apparently extinguished, re-ignited. Fire officers attended and extinguished a fire which then reignited hours later supposedly as a result of smouldering timbers and the house burned down. The pursuers alleged the fire fighters should have used thermal imaging cameras to locate any questionable areas. Lady Paton, in allowing the reclaiming motion and dismissing the case, stated that “the suggestion that the fire service have voluntarily assumed responsibility on the basis of answering a 999 call or attending the scene of a fire or taking steps to extinguish a fire or to save lives or property, is, in my opinion, inaccurate.”

Disease: The case of Harris v Ministry of Defence went to a full hearing last month on the assessment of damages for pleural plaques. The decision is awaited this month.

Sanction for Counsel: We have been waiting with baited breath to see if pursuers’ solicitors would be seeking to apply for sanction for counsel in the new All Scotland Court Personal Injury Court. Over the last month or so there have been reports of sanction for counsel being applied for in relation to a very specific item of advice in a case, sanction for counsel being allowed in a £4,000 slip and trip case and finally another instance of sanction being requested by one firm of solicitors and opposed, which the Sheriff has taken to avizandum. All in all it would seem that there is no great appetite for this at present but we will continue to monitor this over the coming months.

Government Consultations / Legislation

The most notable action this month relates to the removal of the 3 year limitation period from civil actions for damages for personal injury for in care survivors of historical child abuse. Following a consultation on which DWF provided input, both as a firm and through FOIL, the Scottish Government has, as predicted pushed ahead and published last week a draft bill entitled The Limitation (Childhood Abuse) (Scotland) Bill (pdf). The Bill amends section 17 of the Prescription and Limitation (Scotland) Act 1973. It removes the 3 year limitation period for personal injuries actions resulting from abuse when the person who sustained the injuries was a child at the time of the abuse. It applies to abuse occurring before and after commencement of the provisions. Read more in the Government press release

The Apologies (Scotland) Act 2016 received Royal Assent on 23 February 2016. It will stop apologies from being used as evidence of liability in most civil legal proceedings. The main provisions of the Bill included: rules restricting the use of apologies in civil legal proceedings (except for defamation proceedings and Fatal Accident Inquiries) by making them inadmissible as evidence of liability and prohibiting them from being used to the prejudice of the person making the apology.

The Lobbying Bill also passed the stage three debates last month and will be implemented during October 2016.

The Scotland Act 2016 received Royal Assent on 23 March. It will devolve new powers over tax and welfare to the Scottish parliament.

Scottish Civil Justice Council

The Costs and Funding Committee continues to work on the implementation of Sheriff Principal Taylor’s Review of Expenses and Funding of Civil Litigation in Scotland.

The Access to Justice Committee is currently consulting on the draft simple procedure rules which will replace the small claims and summary cause procedures in the sheriff court. These rules are likely to be implemented in October 2016.

In February the Personal Injury Committee agreed the general approach for the compulsory personal injury protocol – due for implementation in September/October 2016. We understand that the protocol will be for motor claims up to £25,000 and will exclude fatal claims. They are also reviewing personal injury simple procedure, for implementation along with the new simple procedure rules and are developing a clinical negligence pre-action protocol.

Read more on the Scottish Civil Justice Council website

Scottish Law Commission

Law of prescription: The Scottish Law Commission has published a consultation which aims to review prescription (time bar in non-injury claims) on civil actions in Scottish Courts. The issue of prescription in relation to claims for latent damage is of particular interest following the decision of the Supreme Court in the case of David T Morrison & Co Ltd v ICL Plastics Ltd in 2014, but the consultation is looking at other aspects of the law of prescription as well. The consultation runs until 23 May. David Johnston QC, leading the project, said: 

The law of prescription plays an important role in balancing the interests of the parties to litigation. As part of our current programme of reform we were encouraged to review the main areas in which change might be considered. This consultation paper is the result.

DWF will be working with FOIL in preparing a response to the questions raised in the consultation paper.

Other notable developments

Scottish Child Abuse Inquiry - Education secretary Angela Constance has held another meeting with survivors of childhood sexual abuse, as the Scottish Government's inquiry into historic abuse prepares to take another step forward. Survivors groups are calling for the remit of the inquiry to be extended to those who suffered abuse before 1964.

The chair of the Scottish Child Abuse Inquiry, Susan O' Brien QC will this week launch her first formal call for evidence. Ms O’Brien said: “On 26 February, we started taking evidence from people who are elderly or seriously ill and we continue to do so.”


For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate, Professional Support Lawyer on 0141 228 8132 or Andrew McConnell, Senior Solicitor on 0141 228 8034.

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.