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Scotland Update

December 2017

Scottish Government Activity

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

Stage 1

Following Andrew Lothian's evidence session before the Justice Committee of the Scottish Parliament on behalf of FOIL, the Committee has heard evidence from further witnesses including Sheriff Principal Taylor, Quantum Claims and Annabelle Ewing MSP.  The Bill will, if passed, introduce QOCS and DBAs to Scotland.

The Justice Committee Stage 1 report is expected to be available before the Christmas break and we will assess it when it becomes available.  We will then work with the ABI to engage with stakeholders as part of Stage 2 of the Bill. 

Our work around claims management companies (CMCs) led to the announcement the Scottish Government was to take forward regulation of CMCs in Scotland.   This represents a significant step forward for insurers and DWF Scotland will continue to present the concerns of the insurance industry to the Scottish Government.

Event - We are looking to host a roundtable discussion in February next year to look at the implications of regulation of CMCs in Scotland how regulation of CMCs currently works in England and Wales. Please get in touch if you would like to attend.

Damages Bill - There are still no firm details from the Scottish Government on its proposed Damages (Scotland) Bill which would set a new formula for calculating the Personal Injury Discount Rate in Scotland and enable courts to impose periodical payment orders for damages awards in personal injury cases. We expect the Bill to be published in early 2018.

Notable caselaw

Slip/trip – Council liability

In the case of Iain Pocock v The Highland Council [2017] CSIH 76  the pursuer tripped on uneven paving slabs on 9 February 2012.   He sued the council and sought damages on the basis of a breach of their common law duty of care owed to pedestrians.  The defect had been identified on 20 December 2011 and the defenders had failed to remedy this in line with their own policy which was to rectify defects greater than 20mm in 7 days and if less than 20mm, within 21 days.   The pursuer's position was the height difference was 28mm and the defenders' position was that it was less than 20mm. 

On appeal the court upheld the Lord Ordinary's decision that the pursuer had failed to prove a height of 28mm and proceeded on the basis that the defect was less than 20mm.  Even although the defect was not repaired within the 21-day period the appeal court agreed that the irregularity of the paving slabs being less than 20mm did not constitute a hazard and that;

“ … a failure by the Council to follow its own policy or plan is not of itself sufficient to establish a failure to exercise reasonable care"

Wind Damage

The case LC v City of Edinburgh Council [2017] SC EDIN 84 involved a sign being blown off of a school wall and striking a parent who was walking her child across the school playground.  Evidence was heard from a meteorologist, school janitor and school inspector.  Sheriff Mackie determined that there had been no risk assessment of the sign and no proper inspection by the janitor despite his being made aware of concerns by parents.  In finding for the pursuer Sheriff Mackie stated:

"it ought to have been reasonably foreseeable that the fixings of a sign attached to an external wall would deteriorate over time leading to the likelihood that the sign would become unsafe. In not assessing the risk of such an event or implementing a regime of inspection which included the sign the defenders failed to take reasonable care for the safety of visitors to the school."

Scottish Child Abuse Inquiry

The Inquiry is now in Phase 2 where it will examine the evidence relating to residential child care establishments run by Catholic Orders. The hearings are expected to run until Wednesday 20 December and will continue into the new year.  The case study on Catholic Orders will end no later than 26 January.

Details of those who have given 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.