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Scotland this month and looking ahead

Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.

April 2017

Counter Fraud Scotland

Winner - Innovation award – Counter Fraud Scotland

Scottish Fraud Awards 2 (1)

DWF's Scottish Counter Fraud team has been awarded the Innovation in Practice Award at the 2017 Scott + Co Scottish Legal Awards which looks to recognise the highest performers in legal practices across the country.

In a unanimous vote, DWF was recognised for its success in setting up a Counter Fraud Legal Team underpinned by a market leading team of Predictive Analytics/Profiling/Intelligence Consultants who look to tackle fraud across all service areas and consistently look for innovative solutions to combat fraud risks as they emerge, resulting in substantially reducing indemnity spend for clients and improving loss ratios.

A combination of Legal/Analytical skills – leveraging data to develop bespoke Counter Fraud Strategies - has enabled DWF to work with clients to ensure that they are spending money on fighting the "right type of claims" for the benefit of our clients.

Jill Sinclair, Head of Counter Fraud Scotland comments: "Delighted that DWF won the Award for Innovation in Practice.  The combination of DWF's Legal/Consultancy skills and our continuous drive to collaborate with key industry bodies such as ABI/IFED/IFB/Law Society of Scotland and Police Scotland has been key to challenging fraudulent practices."

Disrupt to Progress Forum

DWF's Scottish Counter Fraud team also held its first ‘Disrupt to Progress’ Forum in Glasgow on 20 April to discuss ways of combating the growing threat of insurance fraud in Scotland. Attending the event were key personnel from IFED, The ABI, Police Scotland, Insurance Fraud Bureau (IFB), the Forum of Scottish Claims Managers (FSCM) and The Law Society of Scotland.

We had great feedback from all attendees and their comments and support are detailed in our press release.

Please get in touch with Jill if you would like to attend future events or wish bespoke training for your teams.

Professional Indemnity – Scotland

MP Burke Transport ltd v Charles Scott & Partners LLP

In the above case on 20 April the Court of Session looked at the scope of a structural surveyor's duties, and served as reminder to all professionals to be clear on the scope of their instructions. In MP Burke Transport Limited v Charles Scott & Partners LLP, the pursuer sought payment of the estimated cost of repair of alleged structural defects in the roof of a property it had purchased further to the defender providing a satisfactory report. The defender denied liability and contended that its duties were restricted to inspection of the wall cracking and steel bracing, and did not include assessing the internal or external condition of the roof. At the Preliminary Proof, the court held that the defender's duties included inspection of the roof and they were therefore liable. 

Should you wish any advice with Scottish claims please contact Alison Grant in our Glasgow office.

Introducing - Pursuers Offers

From 3 April new court rules introduced a mechanism on 3 April by which a pursuer can put forward a formal offer in settlement.

Consequences for the defender:

Accept offer - If the offer is accepted by the defender within a “reasonable period” then decree (judgement) will pass against the defender in the sum offered together with a finding of expenses (costs). The pursuer’s offer will have no additional financial consequences for the defender in this situation.

Late acceptance - there is no set time within which an offer may be for accepted (although it will not be possible to accept an offer once the court or jury has retired to consider its decision) but the new rules do provide that a defender who accepts an offer after the reasonable period for consideration of the offer has passed will be liable to make additional payments to the pursuer. The later the offer is accepted the greater the penalty is likely to be.

Offer not accepted - a defender may choose not to accept a pursuer’s offer. If the pursuer is subsequently successful at proof (trial) and the court awards the pursuer a sum of money equal to or more than the sum in the offer then the defender will become liable to pay an additional amount to the pursuer on top of expenses awarded by the court.  That additional amount can be up to 50% of the profit costs element of the pursuer's account of expenses.

Limitation & Abuse

Scottish Parliament Justice Committee backs lifting time limitation on child abuse damages.

The Scottish Parliament’s Justice Committee has endorsed the principle of removing the time bar for childhood abuse actions, arguing that the benefits of enhancing access to justice for survivors should outweigh the concerns expressed about the changes.

Implications?

On initial reading it is potentially better than we might have expected. Mention was made that any changes need to be carefully implemented to address the financial impact on bodies that face the claims and requests for historic information.

It would seem the committee has really considered the responses provided by representatives of the insurance industry.  DWF submitted our own response and some of the issues we highlighted, such as introducing a pre-action protocol and evidential issues will be reviewed and given further consideration. 

What's next?

The Bill will now go to parliament for stage 1 vote.

Act of Sederunt (Rules of the Court of Session 1994 and Ordinary Cause Rules 1993 Amendment) (Pursuers’ Offers) 2017

New legislation

Scottish Civil Justice Council (SCJC)

 Scottish Civil Justice Council (SCJC)

Personal Injury Committee

The Committee met at the end of March and continue to deal with the implementation of the Simple Procedure rules. 

Compulsory Clinical Negligence Pre-Action Protocol – the trial with this is continuing with good feedback from those currently using it.  The limit has been increased to £100,000 for the trial protocol.  Progress will be evaluated in June with next steps discussed then. 

Compulsory Disease Pre-Action Protocol – this is at an earlier stage than the trial for clinical negligence.  The group are working towards a draft protocol to be agreed in the next few months with the trial starting thereafter.  

SCJC Working Group - Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

New Rules modernising how Fatal Accident Inquiries (FAIs) are carried out will come into force on 15 June 2017.  Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 received Royal Assent this year. 

Council Working Group chaired by Sheriff Principal Ian Abercrombie was set up to develop the new Rules and provide the detail of how FAIs will work in practice.

The rules are creative, radical and novel,” says Sheriff Principal Abercrombie. “Far greater emphasis is placed on active management by the presiding sheriff who has been given broad powers to tailor the procedure in response to the nature and complexity of the issues raised.

View legislation ›

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 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

The Inquiry has now added the timetable for Phase 1 of the hearings.

The evidence to be heard will include:

•Evidence from expert witnesses about:

•The legislative and regulatory framework governing children in care in Scotland up to 1968;

•The early development of care services in Scotland;

•Societal attitudes towards children; and

•The nature and prevalence of child abuse in Scotland.

This first phase of hearings will begin on 31 May 2017 and run until 12 July 2017.

News and updates can be viewed at Scottish Child Abuse Inquiry 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

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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.

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