Scotland this month and looking ahead
Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
Discount Rate – 10 Hours' notice to fall in line
The Scottish Government has followed the UK Parliament and fixed the discount rate for lump sum future loss payments in personal injury claims at minus 0.75%. The Damages (Personal Injury) (Scotland) Order 2017(see link) is very brief and does nothing more than fix the new rate. It is going to mean a dramatic rise in the value of some serious personal injury claims especially where the future loss element is high.
A further consultation, launched by the Ministry of Justice on 30 March 2017, is considering options for reform including the appropriate methodology for the future. The insurance industry has strongly criticised the Government for reviewing the discount rate now, on the basis that the consultation on the methodology of calculating the discount rate should have been completed first.
In terms of the current Ministry of Justice consultation, the position of the Scottish Government is that it will be consulting jointly with the Ministry of Justice on how the discount rate should be set, and it will be for the Scottish Government to take any outcome of the consultation forward in Scotland.
While the new rate is applicable from 20th March in England and Wales and 28th March in Scotland it is fair to say we are now in limbo, especially in terms of the outcome of the further consultation process. Claimant solicitors will no doubt be alive to this as well.
Impact in Scotland?
It is likely that insurers should seek to review their reserves especially where proofs (trials) are imminent. •Insurers will be reluctant to rush into settlement meetings where proofs are not imminent, pending the outcome of the Ministry of Justice consultation on how the discount rate should be set, whereas pursuers will no doubt push for settlement while the position is as certain as it can be. The innovation of pursuers' offers (see below) will have an impact and insurers will need to weigh up the benefit of waiting for the consultation to conclude, and potential outcome, against the likely risk on expenses (costs).
Insurers will need to be ready for these tactics, and a review of reserves where appropriate is recommended.
In May, the Expenses and Funding of Civil Litigation (Scotland) Bill will be introduced to the Scottish Parliament, and the new discount rate will undoubtedly have an impact. Most notably, there will be calls to ensure that the introduction of Damages Based Agreements will include a provision that ring fences future losses to preserve pursuers’ compensation.
QOCS – the dangers for Scotland
Without strict regulation of CMCs, a ban on referral fees, and reduced recoverable expenses the proposed introduction of QOCS in Scotland could create a perfect storm, unless a number of supportive steps are taken. Head of General Insurance for Scotland, Andrew Lothian, looks at the dangers of QOCS being introduced in Scotland. Read Andrew's article >
Counter Fraud Scotland
Our counter-fraud team held well attended forums this month 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. Events coming up:
Advocate Seminar – Credit Hire Fraud – Advocate – Malcolm McGregor
Trends in Casualty Fraud
Please get in touch with Jill if you would like to attend these events or wish training for your teams.
In the press
We have received good coverage in the press following our Organised Fraud Forum.
For more information about the issues discussed and to be notified of future forums, please contact Jill Sinclair
Professional Indemnity – Scotland
Supreme Court - SAAMCO Clarified and reinforced
BPE Solicitors v. Hughes-Holland  UKSC 21
This week the Supreme Court have again looked at the scope of duty of professionals, causation and the quantification of loss in lender claims.
They have clarified the law as had been understood through cases like SAAMCO and Bristol & West Building Society v Fancy & Jackson. Essentially, there is now a fairly clear statement of what the role of conveyancers, even in so called, "no transaction" cases, is in supplying information, rather than offering advice. [See paras 47 – 52 of the judgment]
The clarification means it does not therefore follow that solicitors will be liable for all of the losses sustained as a consequence of any negligence. Liability will only be for those financial consequences incurred as a result of the information supplied being wrong. [See aras 40 and 41]
Prior to this Judgement lenders have pursued these claims on the basis that in a "no transaction" scenario all losses sustained are attributable to the conveyancer who has breached his delictual and/ or contractual duties per the CML Handbook or otherwise. Lenders will no longer be able to adopt this default position. The onus will be on them to establish a causal link between loss and the incorrect information supplied by the solicitor. In circumstances where loss has demonstrably been caused by market conditions, which is the case in a large proportion of lender claims, lenders will, in our view, struggle to establish that the solicitor's inadequate or inaccurate reporting was the cause of loss.
We would recommend that a strategic review take place in respect of all lenders claims in light of this Judgement. Alison Grant in our Glasgow office will be happy to support clients who require any assistance in this regard.
New legislation / On the horizon
28 March - Discount Rate
The Damages (Personal Injury) (Scotland) Order 2017
On the horizon
3rd April - Pursuers offers (see SCJC section below)
The Expenses and Funding of Civil Litigation Bill
(see SCJC section below)
Scottish Civil Justice Council (SCJC)
Costs and Funding Committee
Pursuers' Offers - New court rules will on 3rd April introduce a mechanism by which a pursuer can put forward a formal offer in settlement.
The rules will apply in the Court of Session and in sheriff court ordinary procedure. Under the new Rules a defender who delays unnecessarily in accepting a pursuer’s offer, or who fails to accept an offer to settle at a sum no greater than what is ultimately awarded, incurs a financial penalty over and above the normal consequence of continued liability for expenses.
The size of the penalty depends on the extent to which the proceedings have been unnecessarily delayed due to non-acceptance or late acceptance. The penalty payable to the pursuer is calculated by reference to the taxed expenses incurred in the period following the making of the offer.
Chair of the Scottish Civil Justice Council, the Lord President, Lord Carloway, said: “Court Rules have an important role to play in promoting and encouraging early settlement of cases. Under these Rules, a defender who chooses not to accept a pursuer’s offer risks incurring a penalty if that decision proves to have been ill-judged. As with judicial tenders, the lodging of a well-pitched pursuer’s offer will therefore provide a strong inducement to settle.”
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 met next on 28 February 2017 and agreed a draft consultation report will be issued to members for approval by correspondence and thereafter submitted to Council seeking approval to publish. Find out more >
Other notable activity
Scottish Legal Awards
We are delighted to say that against extremely credible competition at last night's Scottish Legal Awards, DWF won the Award for Innovation in Practice for the work that DWF has done in setting up a Counter Fraud Team – uniquely combining the legal and consultancy skills across predictive analytics, profiling amd intelligence and working with clients to combat the continuous migration of fraud north of the border. DWF's collaboration with key industry figures was also recognised as part of the award.
Jill Sinclair (Head of Fraud Scotland), Justine Reilly and Caroline Coyle collected the award on behalf of DWF and on behalf of the rest of the team to include the work of Simon White (Senior Predictive Analytics Consultant), Jo Baker (Claims Management Consultant), Lisa Sanzeri (Head of Intelligence) and Linda Avan (Intelligence Analyst).
Helen Callaghan, Trainee Solicitor was also recognised as a finalist in the Rising Star category.
We have had excellent news that the Scottish team have been shortlisted for two awards at the Scott & Co Scottish Legal Awards 2017 - rising star for our amazing trainee Helen Callaghan and innovation in practice award for the market leading data analytics, intelligence and predictive consultancy services behind our Scottish Counter Fraud team. .
DWF Scottish Annual Personal Injury Conference 2017
We will be hosting our annual Scottish Personal Injury Conference at our offices in Glasgow this year. 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
News and updates can be viewed via these links as the enquiry progresses:
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.