Scotland this month and looking ahead
Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
Simple procedure – a changing litigation landscape
Since the Small Claims and Summary Cause procedures (affecting all those cases below £5,000 in value) were abolished in November and replaced with the new Simple Procedure it is becoming clearer as to what the courts are likely to expect from litigants.
The primary goals of the new rules are two-fold: a focus on mediation and negotiated settlement over litigation; and a process which is friendlier to party litigants and those less familiar with the court process.
What difference will this make for insurers?
The hope is that the new Simple Procedure will lead to less litigation and reduced costs as cases are resolved before court and, if they do reach court that the procedural steps of the process (which lead to costs being incurred) are put on hold for negotiations, compromises and settlement meetings.
All actions for a sum under £5,000, raised after 28 November 2016 need to be raised under the new procedure using a new Claim Form. This form will require any pursuer to provide the court with the following information:
why the claimant thinks the action should succeed;
all steps which have been taken in order to resolve the dispute;
a list of all documentation to be relied on in the claim, and
a list of witnesses which may be relied on at a hearing.
It is also now a requirement to provide a narrative on all steps taken to reach a settlement prior to raising court action at the outset of an action. Whilst there is no pre-action protocol in these actions, the purpose of this requirement is clearly to enable the sheriff to determine whether it is reasonable for the action to have come to court.
The new simple procedure combined with the new pre-action protocol further reforms the court system in a way that should reduce litigation figures overall and certainly premature litigation.
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 to which we will be holding the following events in 2017 which are open to all clients:
Forum – Staged/Organised/Complex Fraud
Forum – Staged/Organised/Complex Fraud
Advocate Seminar – Credit Hire Fraud – Advocate – Malcolm McGregor
Please get in touch with Jill if you would like to attend these events or wish training for your teams.
Cases of Interest
Procedure – Refusal of Pursuers sanction for Counsel
A sheriff has refused to sanction the employment of junior counsel in a low value personal injury case in which counsel was instructed for the pursuer to ensure there was no “unfair advantage” after the defenders agents had advised they had instructed an advocate to represent them at the proof.
Damages had been agreed at £1,823.80 and therefore the proof proceeded only on the issue of causation; whether the pursuer was injured in the accident.
Sheriff Kinloch stated that “It is therefore a case that to my mind could have been conducted with relative ease even by an inexperienced solicitor. Although, for their own reasons, the defenders chose to instruct an experienced Counsel, that in my view is not something which would have given them an unfair advantage". Hopefully this is a sign that the courts will now refuse sanction for counsel in cases that are relatively straightforward, where we have seen an increasing use of counsel by pursuers agents where the facts of the case do not justify the additional cost.
Golf course injury - no duty of care
A golfer who was seriously injured when he fell into a manhole on a course has had an action for damages against his fellow club members dismissed. The pursuer sued the eight members of the executive board at Colville Park Golf Club in Motherwell, not as representatives of the club, but in a personal capacity.
The Court of Session dismissed the action as irrelevant as the established principle of liability applied, namely that clubs or its committee members do not owe a duty of care to individual members.
Scottish Government Consultations / Legislation
Limitation (Childhood Abuse) (Scotland) Bill
DWF have been heavily involved in preparing and submitting the FOIL response to the Government proposed Limitation (Childhood Abuse) (Scotland) Bill. This will remove the three year limitation period for victims of abuse. The court will still retain the power under Section 1 of the Bill (which would insert a new section 17D into the 1973 Act) to dismiss a case in two specific sets of circumstances. These are where the defender can demonstrate either that:
i) it would not be possible for a fair hearing to take place;
ii) the defender would be subject to “substantial prejudice” if the case did proceed.
The thrust of our response and also that of the ABI and Forum of Scottish Claims Managers is that the legislation is unnecessary a contention that we understand is also to be adopted by the ABI and. Under the current regime, where the pursuer is time-barred (and the defender has raised this in the defence of the claim) then a court may elect to determine whether to exercise its discretion under section 19A of the Prescription and Limitation Act 1973 Act at a preliminary hearing, at the same time as considering the pursuer's substantive claim.
The court considered the time lapsed, the quality of evidence available and the mental capacity of the respondent. Ultimately it was decided there were no grounds to proceed.
It will be interesting to see whether in the future if the courts will interpret the meaning of “substantial prejudice” in the same way as in the case above, giving careful consideration to the ability of the defenders to prepare a defence.
On the horizon
Fatal Accidents - the Inquiries into Fatal Accidents and Sudden Deaths etc.(Scotland) Act 2016.
(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 >
Other notable activity
DWF Scottish Annual Personal Injury Conference 2017
We will be hosting our annual Scottish Personal Injury Conference at our offices in Glasgow this summer. The topics covered will include personal injury litigation in Scotland and in particular the operation of the Compulsory Pre-Action Protocol, the All-Scotland Personal Injury Court, and the likely content of the Expenses and Funding of Civil Litigation Bill. For those reasons the theme of the conference will be “Personal Injury Claims in Scotland: a changing landscape”.
We have lined up a host of really exciting speakers and will be sending invites out soon.
Arbitration is being offered as a viable alternative to running cases through the Scottish courts. Under the leadership of Gordon Jackson QC, Dean of the Faculty of Advocates, the Faculty is introducing a brand new arbitration scheme, starting with personal injury.
Whilst arbitration has its considerable advantages, in that the parties are able to define the terms of reference and when an arbitration takes place, we think pursuers will resist the option of arbitration so it may well be up to defenders to take up this alternative and see if savings can be made in overall court costs.
Scottish Child Abuse Enquiry
The 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.
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.
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.