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Scotland Focus

Our monthly round-up of developments dominating the legal landscape in Scotland.

April 2018

Counter Fraud Scotland


The team have had some remarkable results over the last few weeks with 12 cases which were set down for proof being abandoned saving over £100k for clients.

Legal Awards  

Following our recent win at the Scott & Co Legal Awards for the Innovation in Practice award the team have been shortlisted for two national awards.  These include:

"Fraud Prevention Solution of the Year" at The Insurance Times Claims Excellence Awards and;

"Outsourced Partner of the Year" at the British Insurance Awards. 

Disrupt to Progress Roundtable

Our fifth Disrupt to Progress Roundtable on 10th July will continue to focus on claims management regulation and will bring together representatives from across the industry. If you would like to attend please contact Jill Sinclair.

Legislation update

Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill [as amended at Stage 3]

The Scottish Parliament’s Justice Committee have agreed further amendments to the Bill. 

Amendments of interest

Future losses– during the debate on Thursday Scottish Ministers voted in favour of Daniel Johnson MSP's amendment to include future losses in the calculation of the success fee.  This is disappointing but not unexpected following the Stage 2 amendment from Margaret Mitchell MSP to ring fence future losses from the calculation of the success fee element in DBAs.  There was strong support in favour of the amendment with 86 MSPs voting in favour and 29 against.  It is now almost certain this will form part of the Bill. 

Fraud definition - John Finnie MSP had tabled an amendment which would have disapplied QOCS only when the claim was fraudulent. However after arguments were presented by DWF, FOIL, the ABI and others, that amendment failed to pass. The test will remain as amended at stage 2: the benefit of QOCS will be lost when the pursuer "has acted fraudulently in connection with the claim or proceedings, or makes a fraudulent representation". 

What's next? - The final version of the Bill, as agreed at Stage 3, will be debated and voted on in the Debating Chamber tomorrow (1 May).  The Bill will be passed if at least 86 MSPs vote in favour, otherwise the Bill will be treated as rejected.  It now seems all but certain that, with SNP and Labour support, the Bill will be passed in its current form.  We will issue an alert to all clients after the Stage 3 debate.    

Prescription (Scotland) Bill

Following its introduction into the Scottish Parliament on 8 February 2018, the Bill has now progressed to Stage 1 where a number of bodies have been giving evidence before the Delegated Powers and Law Reform Committee.  Some recent Supreme Court judgments have provided some well needed clarity on the subject and this is dealt with in more detail in our first On Point publication below.    

Damages (Scotland) Bill

With the Civil Liability Bill down south it remains to be see whether this will prompt the Scottish Government to bring forward the introduction of the Damages (Scotland) Bill.  This Bill is set to amend the law on the personal injury discount rate and enable the courts to impose periodical payment orders when making an award of damages in respect of personal injury.

Professional Indemnity Scotland

 This month Alison Grant's team send out their first Professional Indemnity publication – On Point Scotland. This will be a quarterly publication highlighting important matters in the market.

Alison Grant, Partner, Professional Indemnity

Case law

 Sanction for Counsel – Good news at last

The case of William Cullen-v-Scan Building Services Ltd [2018] SC EDIN 15 is significant as it is the first reported employers’ liability case where sanction for counsel has been refused.

The pursuer was involved in a ‘slip and trip’ accident at work where he injured his shoulder and sued his employers for £50,000.  Liability, contributory negligence and quantum were all in dispute. The case ultimately settled for £11,750. Counsel had been instructed throughout the pursuer's case while the defenders chose not to instruct counsel.  The defenders argued that sanction for counsel should not be granted as the case was not complex or high value.

Sanction is decided on a case by case basis and this uncertainty can be unsettling for defenders and can make the decision of whether or not to utilise the services of counsel a difficult financial consideration.  The guidance given in this case is useful going forward and will assist defenders in court when making ‘difficulty or complexity’ arguments:

"Where reliance is placed on a factor (mandatory or otherwise) the party seeking sanction must be in a position to (i) point to material or information which supports the factor relied on and (ii) show a link between the factor relied upon and the decision which the court is being invited to make. Once the actual or potential difficulty has been identified, it is necessary then, first, to show how it leads to the conclusion that the proceedings are such as to merit the employment of counsel; and, second, how that informs the test of 'objective reasonableness'?"

Scottish Child Abuse Inquiry

The inquiry continues with Phase 2 of the hearings.

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 inquiry progresses. https://www.childabuseinquiry.scot/


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.