Scotland this month and looking ahead
Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
One Month to go! Compulsory Personal Injury Pre-Action Protocol
In just over a month new rules introducing a Compulsory Personal Injury Pre-Action Protocol (CPAP) will come into force. The rules will come into force on 28th November 2016 and will apply to certain damages claims up to the value of £25,000.
Amongst other things, the CPAP encourages parties to send communications by email where they can. At a recent meeting of the SCJC Personal Injury Committee it was agreed that enquiries would be made about publishing the email addresses for a number of insurers in order to provide an initial email contact. As part of this process, we would suggest that clients consider a generic email address for receiving Scottish claims in order that they can be identified easily and routed to the correct timescales, unless they already have an email address that might suit this purpose.
Counter Fraud Scotland
Lorraine Carolan, National Head of Counter Fraud and Jill Sinclair, Head of Counter Fraud Scotland recently hosted clients in London and Glasgow at our Scottish Counter Fraud Conference. Both conferences were extremely well attended. We will be taking the conference out to clients who wish their teams to hear the main issues discussed.
The team are hosting a number of forums and events over the next few months dealing with;
Credit Hire Fraud
Please get in touch with Jill if any of these topics are of interest or if you wish training for your teams.
The Insurance Post ran an article following a discussion with Jill on the rise of personal injury cases in Scotland. In the past four years, Scotland has witnessed a 16.6% increase in injury claims whereas claims in England have decreased by 4.5% over the same period, according to figures obtained by DWF. View >
Cases of Interest
While the personal injury market is still evolving in Scotland and late personal injury claims are still a relatively new phenomena, the insight provided by our intel and profiling teams garnered from dealing with late claims in England and Wales are enabling us to have continued success in this area. View >
Following the case of Red Star Pub Company v Scottish Power Limited  CSOH 100
- which was the highest non-fatal health and safety fine ever levelled in Scotland at £1.75m, the £5m fine of the Alton Towers operators raises questions as to whether this will have any influence on the future approach to be taken by Scottish courts.
Since February 2016, the level of fines for Health and Safety offences in England and Wales are covered by Health and Safety Sentencing Guidelines. The guidelines set out a range of recommended fines that vary according to the turnover of the company. While these do not directly apply to Scotland (see below SSC) when the Scottish Power appeal is heard later this year one of the issues may be the extent to which the Scottish courts should be influenced by these guidelines as opposed to the more modest level of fines traditionally imposed in Scotland.
The Scottish Sentencing Council (SSC)
The Scottish government set up the Scottish Sentencing Council (SSC) in October 2015 but they are yet to address the issue of health and safety sentencing guidelines. Their business plan does seem to suggest that it is at the top of their agenda. The Council will first look at the guidelines that cover death by driving, and environment & wildlife offences. These guidelines are not expected to be passed to the High Court until 2019
Scottish parliamentary business
On 6th September the Scottish Government unveiled its legislative programme for 2016/17. View >
The most notable proposals for the industry are likely to be the Limitation (Childhood Abuse) Bill which will remove the 3 year limitation period for victims of historic child abuse and the Expenses and Funding of Civil Litigation Bill. We issued the alert below dealing with the implications of the Expenses Bill and the imminent arrival of McLaspo. View >
Government Consultations / Legislation
A draft bill giving Scotland the ability to reconsider the question of independence before the UK leaves the EU has been published for consultation. The Bill has not been introduced in the Scottish Parliament and there are no firm plans to do so. Instead the Bill has been published for consultation and responses are sought by 11 January 2017. The draft Bill provides that, subject to specific exceptions, the Scottish Independence Referendum Act 2013 is to apply to a new referendum as it applied to the previous referendum. This provision has substantially reduced the length of the draft Bill in comparison with the 2013 Act. As before, the draft Bill provides for 16 year olds to be entitled to vote and – as before – it is intended that EU nationals would be entitled to vote
The Scottish Government has issued an inquiry entitled Consultation on Scottish Court Fees. This document asks how court fees should be increased in order to achieve full cost recovery. This is based on the premise that the costs of the civil court system should be borne by court users rather than taxpayers.
DWF’s Caroline Coyle sits on the FOIL Sector Focus Team for Costs and Funding and has responded to the consultation.
The Government have confirmed that around thirty responses were received to the consultation on court fees and the Minister is currently considering the way forward.
The much anticipated Insurance Act 2015 ("the Act") came into force in Scotland, England, Wales and Northern Ireland on 12 August 2016. The application of the Act is broadly the same across all jurisdictions and the ongoing reform has been a joint exercise between the Law Commissions for Scotland and England and Wales.
The Act introduces five key changes in the following areas that insurers, policyholders and insurance brokers alike should be aware of:
1) Fair presentation of risk;
3) Warranties and Conditions;
4) Fraudulent claims and
5) Contracting out.
The Act received Royal assent in February this year and aims to clarify existing Scots law by introducing a system that has in other jurisdictions been shown to significantly reduce litigation. An apology will now not be seen as an admission of liability (similar to the Section 1 of the Compensation Act 2006 which applied in England and Wales).
The provisions of the act are noted below but we are yet to see in practise how this will be interpreted. 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.
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).
The Third Parties (Rights Against Insurers) Act 2010 is now in force across the UK, making it easier for third parties to seek damages for losses caused by parties who have become insolvent and therefore streamlining the process by which a pursuer can bring a claim directly against an insurer instead of an insolvent defender.
What does this mean?
Insurers may see an increase in claims as pursuers will no longer have to risk the costs of establishing the defender’s liability and quantum before finding out whether there is insurance in place to cover the claim
Insurers are likely to face an increased number of information requests.
The number of requests and the relatively short time in which they must be dealt with may place a significant administrative burden on insurers.
On the horizon
Fatal Accidents - the Inquiries into Fatal Accidents and Sudden Deaths etc.(Scotland) Act 2016 (see SCJC section below)
The Simple Procedure Rules 2016 come in to force on 28th November replacing the current Small Claims and Summary Cause procedure rules for most claims under £5,000. The Simple Procedure (Special Claims) Rules will be published in 2017 and will deal with complex and specialised claims such as personal injury actions, proceedings for aliment and actions for recovery of heritable property.
The rules pave the way for the introduction of online processing. An online portal will enable the legal profession and the public to start actions, submit case documents, pay fees and track progress online.
There are 4 noticeable main changes to the rules:
The format of the rules has changed and they are laid out in question/answer style paragraphs;
The language used in the rules has also changed and English terminology has been introduced;
The rules set out principles which parties are expected to adhere to; and
The Sheriffs now have very wide powers for dealing with the management and deciding of the case.
Although the rules regarding expenses are dealt with in the new rules a fee schedule has yet to be produced.
The Act of Sederunt (Sheriff Court Rules Amendment) (Personal Injury Pre-Action Protocol) 2016 was made on 20 July 2016 and comes into force on 28 November 2016. View >
Scottish Civil Justice Council (SCJC)
The Council this month published an update on its progress in meeting the priorities set out in its Annual Programme for 2016-17.
This gives an excellent overview of all issues the SCJC are currently prioritising. View >
Personal Injury Committee
There is still a great deal of activity in this committee. The new CPAP commences on 28th November and this will just be the beginning of the compulsory protocols that will be brought in over the next year.
Clinical Negligence Pre-Action Protocol
NHS National Services Scotland Central Legal Office is currently piloting a voluntary clinical negligence pre-action protocol. It is hoped that the pilot will provide assist the shaping of the final protocol, ensuring that it will work when put into practice. The Committee agreed that the introduction of a compulsory Clinical Negligence Pre-Action Protocol should be postponed to allow the trial of the voluntary protocol time to bed in and for it to be monitored and evaluated.
Compulsory Disease Pre-Action Protocol
A reference group is to be set up to develop policy in relation to a compulsory Industrial Disease Pre-action Protocol.
SCJC Working Group - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016
The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 received Royal Assent this year and the SCJC will continue to consider secondary legislation required and review practice and procedure followed in inquiry proceedings, including the drafting of inquiry procedure rules.
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.
At the most recent meeting in September 2016 the minutes noted that the group were working towards 1st May 2017 date for proposed implementation with the new draft rules to be placed before them for approval in March 2017.
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
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. View >
Other notable activity
ABI – Scotland
DWF continue to engage with contacts at the ABI and the Scottish Government in efforts to influence and challenge proposed changes that will affect the Insurance industry in Scotland.
Scottish Child Abuse Enquiry – Update
Senior Judge Lady Anne Smith is now leading the enquiry and issued a message on 17th October which can be viewed here.
Lady Smith’s message is clear that the width of the remit enables them to investigate the abuse of children in residential care in Scotland (or arranged in Scotland) over a period from within the living memory of anyone who suffered such abuse up to the end of 2014.
The obtaining of evidence will continue but the hearings planned for November will be postponed. View >
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.