Caroline Coyle highlights the key issues dominating the legal landscape in Scotland this month.
Scottish Government Activity
With the Parliament in recess and many of the committees and SCJC going through a quieter spell the focus has been very much on key legislation that is making its way through the Scottish Parliament.
DWF continue to lobby and put forward strong views from the legal and insurance industry's perspective on this extremely important piece of legislation which seeks to introduce QOCS & DBA's. Andrew Lothian and Jill Sinclair have engaged directly with the Scottish Government's team behind the Bill, MSPs from a number of different parties at the Scottish Parliament, the SNP's Westminster justice spokesperson, Joanna Cherry QC, the Claims Management Regulator, and the Law Society of Scotland.
We answered the call for evidence and submitted a response to the Justice Committee mid-August.
Read the response submitted by DWF here
DWF also contributed to FOIL response which can be viewed here
The next stage is that oral evidence will be heard at the end of September and during October.
The Limitation (Childhood Abuse) Scotland Act 2017 which received Royal Assent on 28th July this year is set to come into force in October 2017. This Act will dramatically change the landscape of abuse claims by retrospectively removing the 3-year time limit for victims of abuse.
With estimates from the Scottish Government of 2,200 new cases and Police Scotland statistics showing the number of historic cases has risen by 165% this is an important area piece of legislation.
DWF Scottish Abuse Claims Conference - DWF will be hosting a conference on 15th November 2017 to look specifically at the new Act and current fraud issues. Our experts will provide guidance in the handling of abuse cases and discuss the risk of fraud in abuse claims.
Read about progress in the Child Abuse Enquiry below.
Currently, in Scotland, the courts may make a periodical payments order only where the parties consent. This position differs from that in England and Wales where the courts have the power to impose such an order.
The Scottish Government are looking to legislate to assimilate the position with England and Wales and have made a number of proposals which include;
• to allow the court the power to make an order for periodical payments without the consent of the parties. This duty to consider, and the power to make orders, will apply only where the court is awarding damages for future pecuniary loss
• no index link recommended up to parties to make submissions
• details how to make the order, how to secure payment, how to vary/suspend & assign the order
The full draft legislative provisions can be viewed here and DWF will be responding to the proposals.
Counter Fraud Scotland
LVI Claim Abandoned with Savings of £22,500
Our Scottish Counter Fraud team have successfully defended an LVI claim and secured a saving of £10,000 in respect of a claim for personal injury; and £12,500 in respect of third party solicitor costs. Judicial expenses of £8,900 were also awarded in favour of the defender.
The pursuer was a passenger in our client's insured taxi which collided with the rear of a stationary third party vehicle at traffic lights. The insured's position was that he had been travelling at between 2-3mph and that the impact was minimal.
Damage to the taxi was estimated at £5,894.15. Despite this, there was very little damage to the front face of the bumper of the vehicle. Damage to the third party vehicle amounted to £982.52. The photographs showed very light scuffs. The damage to the insured's vehicle therefore did not appear consistent with the insured's version of events or with the minimal damage to the third party vehicle. It was noted that the insured had been involved in one previous incident damaging the front bumper of his vehicle which was not repaired at that time.
The defender's engineering expert, Alan Bathgate was of the opinion that the previous incident had displaced the airbag sensor on the insured's vehicle but not sufficiently enough at that time to activate the equipment. As a result of this the index incident caused the sensor to deploy. Had the damage been as a result of the index collision then there would have been more significant corresponding damage to the third party vehicle. Based on the damage to the third party vehicle he considered that any kinetic energy would have been absorbed by the bumpers fitted to both vehicles and that it would not have progressed through in to the bodywork of the vehicles. He considered that the speed at the point of impact was likely to have been in the region of 2-3mph.
The pursuer's solicitors did not lodge any opposing engineering evidence and withdrew from acting shortly before the proof. The court dismissed the case and awarded expenses in favour of the defender against the pursuer saving the client approximately £22,500.
27th September Farmed Claims in Scotland – the next chapter
10th October Scottish Organised Fraud Round Table
7th December Counsel Seminar - Challenging Expert Witnesses
Please get in touch with Jill Sinclair if you would like to attend future events or would like bespoke training for your teams.
Professional Indemnity Scotland
Scottish Law Commission - Prescription
The issue of negative prescription has long been an uncertain area of law in Scotland.
The Scottish Law Commission's recent report entitled 'Aspects of the law of prescription' provides further guidance as to how this ever-evolving area is likely to develop.
In recent years, the cases of David T Morrison & Co Ltd (t/a Gael Home Interiors) v ICL Plastics Ltd  UKSC 48 and Gordon's Trustees v Campbell Riddell Breeze Paterson LLP (2016 S.L.T. 580) have gone some way to clarifying the position.
The UK Supreme Court is due to hear the appeal in the Gordon's Trustees case this month; We will examine the decision in detail once it is published.
On Point Scotland - In September the Professional Indemnity team in Scotland led by Alison Grant will be launching their first quarterly publication highlighting important matters relating to professional indemnity in the Scottish market.
Other notable activity
We will be hosting our annual Scottish Personal Injury Conference at our offices in Glasgow on 1 November. 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 content of the Civil Litigation (Expenses and Group Proceedings) (Scotland) 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.
Brexit – Implications for Scotland
With the introduction of the European Union (Withdrawal) Bill in the UK Parliament on 13th July the Scottish Parliament has published an Executive Summary setting out the implications of the monumental change for Scotland.
Read more about it here.
Scottish Child Abuse Enquiry
On Tuesday 31 October the Inquiry will resume hearing evidence relating to Phase 1 of its investigations. Phase 2 will begin on Tuesday 28 November 2017. During Phase 2 the Inquiry will examine evidence it has ingathered, researched and analysed relating to residential child care establishments run by Catholic Orders.
Details of those giving evidence and transcripts of the hearings can be viewed here
News and updates can be viewed via this link as the enquiry progresses.
For further information please contact Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305, Caroline Coyle, Associate, Professional Support Lawyer Insurance 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.