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Scotland this month and looking ahead

Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.

Compulsory Personal Injury Pre-Action Protocol – Be Aware!

New rules introducing a compulsory Personal Injury Pre-Action Protocol will come into force on 28th November 2016 and will apply to certain claims of damages up to the value of £25,000 in local sheriff courts and the all-Scotland Personal Injury Court (ASPIC). View legislation >

The new Protocol sets out the steps both pursuers and defenders will be expected to take before an action is raised in court. The new Rules also give the court power to make an award of expenses against a party who fails to comply with these requirements. The Protocol, which comes into force on 28 November 2016, aims to encourage the fair, just and timely settlement of claims for damages so that only those cases which cannot be agreed between parties will be lodged in court.

Read more about the compulsory protocol in our legal update >

August 2016

Cases of Interest

Counter Fraud

The counter fraud team in Scotland have recently had a success repudiating a late notified claim with large savings for the client.  The result came as a result of pro-active file handling by the insurer and DWF combined with excellent intelligence investigations. Read more >

Other cases of interest:

Stephen McFadden v Armando Margiotta & UK Insurance Limited, [2016] SC HAM 44

Professional Indemnity

Edward Price v A Decision of the Scottish Legal Complaints Commission [2016] CSIH 53

Property Damage

Red Star Pub Company v Scottish Power Limited [2016] CSOH 100

Sanction for Counsel – Interesting and useful comments on sanction for counsel

The test for sanction is governed by s.108 (3)(a) of the Court Reform (Scotland) Act 2014. When being asked to grant sanction the Court must have regard to the difficulty or complexity, or likely difficulty or complexity, of the proceedings, the importance or value of any claim in the proceedings, and the desirability of ensuring that no party gains an unfair advantage by virtue of the employment of counsel.

Recent decisions on sanction for Counsel that are likely to be of interest:

Cumming v SSE plc [2016] SC EDIN 35

Dow v M & D Crolla Ltd [2016] SC ED 21

V on behalf of J v M & D (Leisure) Ltd [2016] SC ED 22

Charge to Jury

An important way in which Judges can limit excessive awards made by juries is in the form of a charge to the jury with “guidance” on an acceptable range of awards.  Recently in a road traffic case counsel for the pursuer suggested a bracket with £120,000 at the top end and counsel for the defender suggested a range of £15,000 to £20,000. Lord Tyre in his charge to the jury suggested a range of £25,000 to £40,000.  No objection was made by the counsel for the pursuer at the time and it was only after an hour of jury deliberations that an objection was raised that the range was “too low”.  In rejecting the proposition Lord Tyre clarified that any desire to take exception must be made “immediately on the conclusion of the charge”

The jury found liability established by majority and valued solatium at £32,000. The other heads of damage were agreed between parties at £6,900. The defenders successfully obtained a finding of 85% contributory negligence.

Caroline Bridges v Alpha Insurance A/S [2016] CSOH 114

Duty of care – Prison service – Prisoner attacked by another prisoner

A former prisoner raised an action for damages against the Scottish Ministers for injuries sustained in prison when he was attacked by another prisoner.  The essence of the prisoner’s argument was that a prison officer had known about the risk of an attack and was therefore negligent by not maintaining a continual presence at the time of the assault.  In dismissing the claim it was held that a staff presence would have been unlikely to have reduced the risk of / prevented the assault. 

Dalmar v Scottish Ministers, Sh Ct (Edinburgh), Sheriff P A Arthurson, QC, 2 June 2016

Scottish parliamentary business

Current bills

The Parliament is in recess until 4 September 2016.  There are, at the time of writing no current bills before the Parliament that are likely to be of interest to insurers.  This may of course change as we move further into session five. The programme for Government will be published in September and we will update you then.

Government Consultations / Legislation



This move to increase court fees will come as a surprise as the fees were last reviewed in 2015 and previous Governments have only sought to review court fees every three years or so.  The new simple procedure rules which replace the current small claims and summary cause procedures are to be introduced from 28 November and it is the intention of the Scottish Government to bring in the new table of fees with effect from that date.  The consultation will run from 20th July until 12th October. 

DWF will be involved in responding the consultation.


Consultation on Draft Proposals for a “No-blame” Redress Scheme for Harm Resulting from Clinical Treatment

Consultation on Seatbelt Requirements for dedicated school transport

New legislation

The Apologies (Scotland) Act 2016

Having received Royal assent in February this year we were to expect a date this month for the Apologies (Scotland) Act to come into force and show in practise how it was to be interpreted. 

The Act aims to clarify existing Scots law introducing a system that has in other jurisdictions been shown to significantly reduce litigation, so that an apology will not be seen as an admission of liability (similar to the Section 1 of the Compensation Act 2006 which applied in England and Wales)..

Studies have shown that nearly 40% of British families would not have pursued litigation if offered a prompt apology combined with full disclosure in the immediate aftermath (Edinburgh Law Review). 

Further guidance on what constitutes an “actual apology” will hopefully be provided by the Scottish Ministers. There is a danger that any apology not in the correct form of words, may be deemed to go beyond an apology and constitute an admission of liability.  We will  update you further once we have the guidance. Read more >

Court rules - Work is continuing with implementation of the Courts Reform (Scotland) Act 2014. Read more >

Fatal accidents - the Inquiries into Fatal Accidents and Sudden Deaths etc.(Scotland) Act 2016. 

This month the Crown Office has said that a fatal accident inquiry into the death of a Scottish woman in Israel is "not competent under the current legislation" as the relevant provisions of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 are not yet in force, meaning it has no power to consider the case.

Julie Pearson, 38, died last November as a result of internal bleeding following a visit to a guest house in the Red Sea resort of Eliat. Read more >

Simple Procedure Rules - The new Simple Procedure Rules have now been laid before Parliament, replacing the small claims procedure for cases which have a value of £5,000 or less in the sheriff court. They will come into force in November 2016. Read more >

Insurance Act 2015

The Insurance Act 2015 came into force on 12 August 2016, which contains provisions to remedy various technical defects with the 2010 Act.

Key provision;

  • New duty of fair presentation of risk

Businesses must, either: (a) disclose to the insurer every material circumstance which the business knows or ought to know about or (b) give the insurer sufficient information to put a prudent insurer on notice that further enquiries are needed to reveal those material circumstances.  Time will tell how the phrases “fair presentation of risk”, “material” or “know or ought to know” are interpreted but in the meantime its clear there is a real onus on policyholders to properly investigate their risks, identify these and communicate them to insurers. Read more >

On the horizon

In October 2016 the Third Parties (Rights Against Insurers) Act 2010 comes into force, making it easier for third parties to seek damages for losses caused by parties who have become insolvent.

The Limitation (Childhood Abuse) (Scotland) Bill would lift remove the three-year time bar on civil actions in cases of historical childhood abuse has been published and is likely to be introduced in the next parliamentary session in September. Read more >

Scottish Civil Justice Council (SCJC)

Scottish Civil Justice Council (SCJC)

SCJC Working Group - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

A working group has been set up to take forward legislative changes to inquiries into fatal accidents and sudden deaths.

The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 received Royal Assent this year and the SCJC will review practice and procedure followed in inquiry proceedings, including the drafting of inquiry procedure rules.

At their second meeting on 20th July the working group agreed that a preliminary hearing should be held in all but exceptional cases and that submission of evidence electronically should be supported by the new rules.

They will continue to consider the secondary legislation required to facilitate implementation of The Inquires into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 and to make proposals for draft inquiry procedure rules for consideration by the Scottish Civil Justice Council.

The Access to Justice Committee – the committee is currently consulting on the draft simple procedure rules which will replace the small claims and summary cause procedures in the sheriff court. 

Scottish Law Commission

Scottish Law Commission

Law Reform Projects

Law of prescription - The Law Society of Scotland has said that clarity is needed on the current time limits for raising claims in court.  In its response to a discussion paper published by the Scottish Law Commission (SLC) on prescription law, the Law Society has said that providing clarity on time limits could reduce time and money spent on raising cases which could be settled outside the courtroom.

The consultation closed on 23 May and the Commission are now analysing the consultation responses, Thereafter a report and a draft Bill will be published in the first half of 2017. Read more >

Other notable activity

Medical Negligence

The number of patients compensated by the NHS for medical negligence rose to a record high last year.  The 251 cases in 2015/16 is almost double the tally from five years ago, and an increase of 38 from the previous year.

New Justice Secretary

New Prime Minister Theresa May has recently named Scot Elizabeth Truss as her new Lord Chancellor and Justice Secretary, after she replaces Michael Gove. She becomes the third non-lawyer Lord Chancellor in a row. With the English Parliament in recess, we wait to see what agenda she will pursue, although in an interview with Radio 4’s Today programme she confirmed her intention to create a "British Bill of Rights".   

Scottish Child Abuse Enquiry – Update

Senior Judge Lady Anne Smith is now leading the enquiry.  The obtaining of evidence will continue but the hearings planned for November will be postponed. 

Two survivor groups -  INCAS (In Care Abuse Survivors) and FBGA (Former Boys and Girls Abused of Quarriers Homes) - have applied for core participant status and for funding for legal representation. Their applications have been granted.

Discussions have been held with a range of organisations including Police Scotland, local authorities and health boards about the preservation and recovery of relevant records. The Inquiry intends to begin issuing requests for documents in the coming months, while a document and evidence management system will shortly be in place for the secure storage and handling of records recovered through this process.

For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate on 0141 228 8132 or Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196

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.