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Scotland Update

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

September 2017


Scottish Government Activity – DWF getting involved

The Scottish Government's Programme for Government 2017-18 was released on 5th September and sets out the actions the Government will take in the forthcoming year.  The most interesting for the insurance sector will be the Damages Bill which will amend the law on the Personal Injury Discount Rate following a joint consultation with the UK Government. The Bill will also enable courts to impose periodical payment orders when making an award of damages in respect of a personal injury.

Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill.
Stage 1

On 26th September our Andy Lothian was the only defendant insurance lawyer to give evidence before the Justice Committee of the Scottish Parliament on the above Bill.  The Bill will, if passed, introduce QOCS and DBAs to Scotland.

View Andy's evidence live here at 11min 42. 

Andy said: ""QOCS is virtually certain to be part of the Scottish claims landscape soon.  However, the Justice Committee clearly has a grasp of the challenges this will bring and we are hopeful that the unintended consequences of the Bill may be mitigated.  In particular, we hope the Committee will recommend that regulation of claims management companies in Scotland is accelerated and runs in tandem with the Bill coming into effect.  The Justice Committee will take evidence throughout October and we will continue to keep you informed as the Bill progresses.  DWF Scotland will continue to present the concerns of the insurance industry to the Scottish Government."

Read more detailed submissions about the concerns for the industry in our response to the Scottish Government's call for evidence here

Andy has also had an article published in the Scotsmanon the same subject.  DWF will continue to lobby and put forward strong views from the legal and insurance industry's perspective on this extremely important piece of legislation.

The Limitation (Childhood Abuse) (Scotland) Act 2017

The Limitation (Childhood Abuse) (Scotland) Act 2017 will come into force on 4th October 2017.  This Act will dramatically change the landscape of abuse claims by retrospectively removing the 3-year time limit for victims of abuse, whether physical, psychological or both.

Statistics from the Scottish Government and Police Scotland show a vast rise in the number of historic cases of abuse being reported.  We will need to review and assess whether the purported safeguards for defenders in the Act, such as their entitlement to a "fair hearing" or whether they will suffer "substantial prejudice" if the case proceeds, will be robust enough. 

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.

Notable case law

Occupiers Liability– All Scotland Personal Injury Court (ASPIC) - considers what a pursuer must do to establish liability under the Occupiers’ Liability (Scotland) Act 1960 and to what extent they will be liable for their own poor judgment.  The case involved a young girl who fell at night while making a shortcut across a restaurant car park, sustaining serious injuries.  Indications were that the girl had been drinking.   In dismissing the claim, Sheriff McGowan held the pursuer had been unable to prove the light level on the roadway at the time was so poor she could not see where she was going.  Further, if the existing light level was sufficient for pedestrians to be able to see then there was no duty on the defender to provide additional light. 


Counter Fraud Scotland

DWF Fraud teams have been shortlisted in the Insurance Post Fraud Awards 2017 in 5 categories. Our Counter Fraud Scotland Team have been singled out in the Combatting Fraud - collaboration of the year award. The awards take place on 5th October in London.

Forthcoming events:

27th September          Farmed Claims in Scotland – the next chapter

22 November 2017    Disrupt to Progress - Cyber Risk Scottish Counter Fraud Round Table

7th December             Counsel Seminar - Challenging Expert Witnesses

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

Professional Indemnity Scotland

On Point Scotland - The Professional Indemnity team in Scotland headed up by Alison Grant will be launching their first quarterly publication highlighting important matters relating to professional indemnity in the Scottish market.   Please contact Alison if you would like to receive a copy.

Scottish Civil Justice Council (SCJC)

Consultation on Fees of Solicitors

The SCJC are seeking views on the fees for solicitors' that can be recovered in court.  Responses will be analysed before a decision is reached on whether to increase or decrease he levels.  Given the proposed changes afoot with the introduction of QOCS and DBA's it is important the level of judicial fees pursuer solicitors are recovering is kept under close scrutiny. 

DWF will be submitting a response and are keen to ensure that it is representative of insurers' views on the subject. Please get in touch with Caroline Coyle if you have any comments. 

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.  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 shortly.

Brexit Bites: Implications for Scotland

The Scottish and UK governments have held "constructive" talks over Brexit, but are still a long way from a deal.  Scotland's Deputy First Minister John Swinney and Brexit Minister Mike Russell met First Secretary of State Damian Green in London this month to discuss concerns about the EU Withdrawal Bill.  The Scottish government is seeking changes to the legislation for taking the UK out of the EU.

The dispute stems from what happens to powers which are currently not reserved to the UK government, but which are exercised from Brussels. UK ministers want them to go to Westminster in the first instance, before some are incorporated into UK-wide frameworks and others are sent on to the devolved.

Both the Welsh and Scottish governments say this plan would undermine the founding principle of devolution, that any powers which are not specifically reserved to Westminster should be devolved. 

Further negotiations are planned.

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.