Scotland this month and looking ahead
Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
Headlines – McLaspo & Abuse claims
Scottish Government plans to introduce ‘McLASPO’ will impact both casualty and motor insurers
Andrew Lothian has highlighted concerns around the Expenses and Funding of Civil Litigation (Scotland) Bill to the Scottish Government. Read more about this and our collaboration with the Scottish Government in our update, McLaspo update: QOCS one step closer in Scotland.
With the UK government confirming that it intends to raise the level of the Small Claims Track in England and Wales (where expenses are not recoverable) to £5,000 for RTA injury claims and to £2,000 in EL and PL claims (up from £1,000) and also announcing that it will reduce the level of all whiplash awards where the recovery is 24 months or less, the effect of those reforms and the introduction of QOCS in Scotland is likely to lead to an increase in claim volumes.
Limitation (Childhood Abuse) (Scotland) Bill
The Justice Committee of the Scottish Parliament has started to hear oral evidence on the this Bill. Financial documents published alongside the Bill estimate the change in the law would result in about 2,200 claims in the courts initially.
However, Police Scotland has warned that the impact of the Bill could be much higher than expected. In a written submission to the committee, Police Scotland reiterated its support for the Bill but added it estimated the force held at least 5,000 files dating back to 1964 relating to reports of child abuse and neglect "within an institution or care setting or involving a person of public prominence".
The force said: "As such, Police Scotland is of the opinion that the reference point is a conservative estimate and the impact on the Scottish courts may be more significant that suggested in the financial memorandum."
The concern was echoed by the Association of British Insurers, which said the 2,200 estimate "fails to take into account the potential effect of the Bill in encouraging more cases to be brought or of previously heard cases to be resurrected."
"Scottish ministers therefore seem at risk of considerably underestimating the total number of cases raised as a result of the Bill and the financial implications for public funds including legal aid, and the budgets of local authorities, the Scottish Government and other public bodies."
Evidence heard so far – a summary
• No actions founded on abuse pre-dating 26 September 1964 will proceed.
• Asked for the definition of “abuse” to be cast as widely as possible. Term of “spiritual abuse” raised.
• It was accepted that, even assuming the passage of the Bill, claimants would still face “significant hurdles” in successfully proceeding. In that regard, it was conceded on behalf of the Association of Personal Injury Lawyers, that even if the Bill did not make specific provision for not allowing actions to proceed, if the Defender could not get a “fair hearing”, then such a threshold test would be implied anyway by virtue of human rights.
•Following on from the “fair hearing” point, it was noted that the Bill, if it became an Act, would not give survivors the certainty which was sought. Judicial discretion would still come into play. Rather than discretion relating to the question of whether to allow a time-barred claim to proceed, it would be on the “fair hearing” point.
•Other options should be considered: the existing limitation legislation could remain “as is” but guidance could be issue on allowing a time-barred claim to proceed.
•The issue of “secondary trauma”, caused by litigation itself, was raised. The Bill, even if passed, would not eliminate that and uncertainty would remain. Having an extra-judicial protocol to deal with these claims might lessen “secondary trauma”.
Further evidence will be held over the next few weeks and updates will be provided.
Abuse claims - England
Whilst Scotland are looking to remove limitation altogether from abuse cases the situation in England and Wales shows something of a differing trend with the last 3 appeal cases on limitation all decided in the Defenders favour. View >
Counter Fraud Scotland
KPMG released interesting figures at the end of January providing insight into the level of fraud Scotland. The figures showed that, despite a 25% decline in the number of fraud cases reaching the Scottish courts in 2016, the value of those cases was more than five times greater than in 2015, rising from £4.7m to £24.3m. This was driven by a large (£18m) case of investment fraud which drove up the average value per case from just £0.4m in 2015 to £2.7m in the last year. Where in previous years, employees were responsible for the majority of fraud recorded, 2016 saw the figure fall by more than 70%, with only two cases coming to court, compared with seven in 2015. Conversely, fraud perpetrated by those in a position of management was on the rise, accounting for over half of all cases heard in 2016.
Our counter-fraud team held another well attended forum this week on Scottish Organised Fraud. The feedback from attendees has been excellent and attendees included Police Scotland, ABI and clients and contacts from across the country. The forum will also be run in London next week.
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.
On the horizon
A bill to reform contract law was introduced to Scottish Parliament on 31st January 2017.
The Contract (Third Party Rights) (Scotland) Bill will give third party rights – rights a person has under a contract they did not make themselves – for the first time.
An example of where this Bill might apply in future, would be where someone has an accident at an event or on holiday or through using a product and wants to claim damages, but they did not make the booking or the purchase themselves.
(see SCJC section below)
Scottish Civil Justice Council (SCJC)
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. The Working Group next meets on 28 February 2017, when it will consider the responses to the consultation and recommend any revisions to the draft rules as a result. The responses, along with revised draft rules and a draft consultation report, will be placed before the Council for consideration and approval thereafter. View consultation >
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.
Scottish Child Abuse Enquiry - further criticism
A third senior figure on the Scottish Child Abuse Inquiry has resigned. Glenn Houston, who was the only original panel member, cited personal reasons for his departure. He remained on the inquiry team last year after the resignation of the chairwoman, Susan O'Brien QC, and panel member Michael Lamb. Read more >
Lady Smith said: “Mr Houston has made a valuable contribution to the work of the Inquiry during his time as a panel member and I am very grateful to him for his support. I fully understand his decision and wish him well in his new ventures.
“The important work of the Inquiry continues as normal and we would encourage anyone who has relevant information, whether they have been abused themselves or know others who have, to get in touch.”
In Care Abuse Survivors, a survivors group, have expresses concerns about the makeup of the inquiry;
"There is concern that the inquiry is dominated by the legal profession…….Survivors are considering withdrawing from this whole process until they are satisfied that survivors are placed at the centre of the inquiry.
Progress to date - The Inquiry is currently investigating 69 institutions that provided care to children in Scotland, including boarding schools and establishments run by Catholic orders, the Church of Scotland, other private care providers, local authorities and NHS Boards. These organisations include Roman Catholic Orders, Church of Scotland, Boarding schools, voluntary organisations, local authority establishments, healthcare establishments and child migrants. These bodies have been asked to provide reports giving them information specific about their management, policies and practices. Read more >
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.