Scotland this month and looking ahead
Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
The three-year time limit that prevents childhood abuse survivors from seeking civil damages in court is the focus of a call for evidence issued by MSPs on the Scottish Parliament’s Justice Committee.
The evidence received will inform the Committee’s scrutiny of the Limitations (Childhood Abuse) Scotland Bill. The legislation proposes removing the current three-year time bar which limits the period an individual has to bring forward a civil personal injury damages claim in cases of childhood abuse.
Committee Convener, Margaret Mitchell MSP, said: “This bill is undoubtedly a very sensitive piece of legislation which the committee will scrutinise to assess the impact on the people who it may affect. While the Justice Committee is supportive of access to justice, we need to be certain these proposals are fit for purpose.”
“We want to understand the practicalities and to hear different perspectives on these proposals, so we hope we will get pertinent submissions and testimonies.”
In particular, the committee is looking to hear:
• If there is a consensus with the idea of removing the time bar;
• The expected impact on survivors of childhood abuse, those who might be involved in defending civil actions, and the courts;
• Whether people agree with the government’s definitions of “child” and “abuse”;
• Views on the proposed ability to raise claims that were previously time-barred.
The call for evidence closes on 11 January 2017 & DWF will be taking part in the FOIL response.
Read more about this in our recent legal update.
Also see information about the start of Scottish Child Abuse Enquiry below.
Counter Fraud Scotland
Lorraine Carolan, National Head of Counter Fraud and Jill Sinclair, Head of Counter Fraud Scotland continue to meet with clients to discuss and develop bespoke strategies to target fraud. In addition, we will be holding a number of events in 2017, covering casualty fraud, staged/organised/complex fraud, and credit hire fraud.
Please get in touch with Jill if you would like to attend these events or wish training for your teams.
Cases of Interest
Procedure – Pursuer’s expenses modified
The following case presents an interesting discussion of the pursuer’s solicitor’s behaviour (non-disclosure of medical report) and consequences in expenses.
Accordingly, I have come to the conclusion that although the raising of the action was justified, some modification of the pursuer’s expenses is appropriate on the basis that settlement of the claim was delayed, and thus the defender’s insurers were put to more expense than they would otherwise have been. This is not a matter which can be scientifically determined and in all the circumstances, I have concluded that the pursuer’s expenses should be modified by 20%.Sheriff McGowan
We very rarely see expenses awards against pursuers or modifications so this will be of interest, especially in light of the Compulsory protocol now in place (but which did not apply at the time of this decision) and the opportunity it presents for defenders to have the pursuers expenses reduced due to pre-litigation behaviour.
A man who claimed to have suffered brain damage after being injured while playing on a farm as a child has been awarded over £300,000.
Craig Anderson, 21, says that farmers John and Antoinette Imrie did not do enough to prevent him from injuring himself when he was eight years old. The Court of Session in Edinburgh heard how Mr Anderson was playing with the couple’s son at Hillhead Farm, in Torrance, in East Dunbartonshire in 2003. He climbed on to the first rung of the gate and lifted the chain from the metal post to open it. However, as he did so, the gate fell on top of him, pinning him to the ground.
Mr Anderson said that the steading wasn’t properly secured when he attempted to open the gate and this caused it to fall on him.
The Imries, claimed while they are farmers and lived at Hillhead Farm for at least 10 years before the incident, they fulfilled all duties of reasonable care towards Mr Anderson.
That figure awarded was made up as follows:
Interest on past solatium
Future loss of earnings:
Costs of psychological therapy:
Services provided by Mrs Anderson:
Interest on services:
Disease - When is a child not a child?
This is the question the court was asked to consider in the case of Brenda Gray & Others v The Advocate General For Scotland.
It is well established in Scotland that, following the death of a loved one due to the negligence of another, an entitled person does not have to be a direct blood relation of the deceased in order to claim compensation. The Damages (Scotland) Act 2011, s14(1)(b) and (d) provides a "catch all" for non-blood relations provided the pursuers can establish that they were accepted by the deceased as a "child" or "grandchild" of the deceased. The defenders in the present action sought to challenge the entitlement of the Second, Fifth and Seventh pursuers on the basis that, due to their age, they could not fall under the definition of "child" or “grandchild”. The pursuers were aged 33, 36½ and 19 and 10 months, respectively
The court held that the absence of any age restriction in the Damages (Scotland) Act 2011 was paramount. Had Parliament intended to place an age restriction on the meaning of child it would have done so. The court held that the definition of "child" for the purposes of these sections clearly correlated to the relationship with the deceased and not age and the pursuers were entitled to proceed.
Scottish Parliamentary Business (1)
We have identified that the most notable proposals for the industry were 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. It seems the Parliament are pushing ahead full steam with their commitment to abuse victims as indicated above.
Scottish Government Consultations / Legislation
DWF’s Caroline Coyle sits on the FOIL Sector Focus Team for Costs and Funding and has responded to the consultation.
On the horizon
Fatal Accidents - the Inquiries into Fatal Accidents and Sudden Deaths etc.(Scotland) Act 2016. View >
(see SCJC section below)
Scottish Civil Justice Council (SCJC)
Personal Injury Committee
There is still a great deal of activity in this committee. The new CPAP commenced on 28th November. Further protocols for Clinical Negligence and Disease are likely to follow.
Clinical Negligence Pre-Action Protocol - 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 with the Central Legal Office time to bed in and for it to be monitored and evaluated.
Compulsory Disease Pre-Action Protocol - A working group, which will meet in early 2017, was set up to develop a compulsory industrial disease pre-action protocol for the consideration of the full Committee.
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. At the most recent meeting the minutes noted that the group were working towards 1st May 2017 as the proposed date for implementation with the new draft rules to be placed before them for approval in March 2017.
The SCJC have announced they are to consult and seek views on draft rules of court for
fatal accident inquiries. The closing date for responses is 23rd January 2017. DWF will be responding to this consultation having sought views from specific clients who will potentially be affected. View >
Scottish Law Commission
The consultation on the law of prescription 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.
Other notable activity
ABI – Scotland
DWF continue to engage with Alastair Ross Assistant Director, Head of Public Policy (Scotland, Wales & NI) at the ABI and the Scottish Government in efforts to influence and challenge proposed changes that will affect the Insurance industry in Scotland.
Andrew Lothian has highlighted his concerns around the Expenses and Funding of Civil Litigation (Scotland) Bill to the Scottish Government. He has now been invited by Hamish Goodall, Scottish Government Justice Directorate, to take part in the Business and Regulatory Impact Assessment (BRIA) process in the New Year.
We also intend to meet with Joanna Cherry QC MP. Joanna isthe SNP's justice spokesperson at Westminster. We understand she is opposed to Claims Management Companies and the level of fees they take from clients. We are hopeful we can discuss with her industry concerns about the risk of the "squeezed balloon" effect of displacing CMCs from England and Wales into the Scottish market. This is even more pertinent given the nature of the proposed whiplash reforms in England and Wales.
The Scottish Budget 2016
Scottish Finance Secretary delivered the first Scottish Budget using new and wide-ranging income tax powers. As of April 2016, the Scottish Government receives 10% of income tax raised in Scotland and from 30th November 2016, the necessary legislation was passed to allow the Scottish Government to control both the rates and bands of the Scottish Rate of Income Tax. We will be closely monitoring how affected taxpayers – both businesses and individuals – react, and this is something we will also continue to observe with interest.[MD1]
Scottish Child Abuse Enquiry – First Hearing Set
The Scottish Child Abuse Inquiry has this week (14 December) announced that its preliminary hearing will take place on 31 January 2017 at Parliament House in Edinburgh.
At the preliminary hearing, Inquiry Chair Lady Smith will explain the Inquiry’s approach to its work and will provide an update on the Inquiry’s current investigations. She will set out the Inquiry’s key procedures including how people and interested parties may participate in the Inquiry and the different ways in which the Inquiry is gathering evidence. Information will also be shared about the proactive communications campaign to drive public awareness of and engagement with the Inquiry.
As this hearing will deal with procedural matters only, no witnesses will appear and no evidence will be heard.
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.