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Scotland Focus

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

May 2018

Counter Fraud Scotland

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

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill  was passed by the Scottish Parliament on 1 May. This Bill will bring in QOCS, DBAs & group proceedings.  It is likely to get Royal Assent in the next few weeks and come into force later this year.   Further information is available in our alert.  The Personal Injury Committee of the Scottish Civil Justice Council met in April and made nine recommendations which give an indication of how the the Bill will work in practice.  Their recommendations, which are likely to be implemented via an Act of Sederunt, include the loss of QOCS protection where a pursuer fails to beat a tender (limited to 75% of any damages awarded) and where a pursuer's action is summarily dismissed.

Following its introduction the Prescription (Scotland) 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 judgements have provided some well needed clarity on the subject and this is dealt with in more detail in our first On Point Professional Indemnity Scotland publication.  

The Financial Guidance and Claims Act 2018 received Royal Assent on 10 May and will transfer the regulation of claims management companies from the Ministry of Justice to the Financial Conduct Authority bringing with it regulation for Scotland.

European Union (Withdrawal) Bill 2017-19  - Brexit - MSPs voted by 93 to 30 last week to withhold Holyrood’s consent from the EU Withdrawal Bill, the key piece of legislation paving the way for the UK’s departure from the European Union next year. Westminster ultimately has the power to introduce the legislation without the consent of Holyrood - but it would be politically difficult, and has never been done before.  The main point of contention is the "temporary restriction" on the 24 devolved areas where Westminster wants to retain power temporarily in the wake of Britain's exit from the EU, including in areas such as agriculture, fisheries, food labelling and public procurement.

Proposed Recovery of Medical Costs For Industrial Disease (Scotland) Bill.   The proposed legislation, which is backed by Clydeside Action on Asbestos, aims to recoup the medical costs associated with NHS treatment for industrial injuries and diseases caused by negligence. This includes asbestos-related conditions, as well as the likes of industrial deafness, asthma, and skin diseases.  When Stuart McMillan MSP tried to gain support for the Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill in 2015 DWF responded opposing such recoveries.  The Bill was subsequently dropped.  DWF, in collaboration with FOIL, will be taking part in the consultation response for this latest Bill. 

Independent Review of the Regulation of Legal Services– The review has been established by the Scottish Government and several representatives from our team met with the Chair, Esther Roberton, to discuss the regulation of claims management companies, problems we may encounter and suggestions for the implementation process.  We have agreed to assist the review further and we have since written to Denise Swanson, Head of the Scottish Government's Access to Justice Unit, who was in attendance to engage further with her and have invited her to our Disrupt To Progress event in Glasgow on 10 July.


Case law

Occupiers Liability – supervision of children

In the case of Anderson v Imrie [2018] CSIH 14 the pursuer sought damages after being injured on a farm (occupied by the defenders) when he was eight years old.  The pursuer was playing with a friend whose mother (second defender) was supervising them and had warned them not to access certain parts of the farm.  The important discussion throughout this case centred on what was a reasonable level of supervision to expect from those in loco parentis looking after children.  At first instance the second defender was found to be liable with a 25% deduction for contributory negligence.  An appeal was lodged and while this was ultimately unsuccessful Lord Pentland looked at the level of supervision exercised and asked:

 "whether a reasonable careful parent would have acted in the same way as she had done"

There is a lack of authority in this area but it was emphasised that the courts should be careful not to impose too strict a burden on parents and those in loco parentis looking after children.  Other considerations were relevant when assessing the supervision provided, such as the fact that the majority of people undertake child care responsibilities while performing household and other daily tasks. 

Scottish Civil Justice Council (SCJC)

Disease - the Personal Injury Committee met on 9th April 2018 (minutes here)  and approved the draft Compulsory Disease Pre-Action Protocol.  Fee structures will now be prepared and the process finalised.  There are no dates yet for implementation. 

Scottish Child Abuse Inquiry

The inquiry continues with Phase 2 of the hearings with a case study about residential child care establishments run by the Sisters of Nazareth.

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.