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Scotland Focus

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

June 2018

Government/Legislation update

Discount rate Scotland  - The Damages (Investment Returns and Periodical Payments) (Scotland) Bill was introduced into the Scottish Parliament on 15 June.

The Bill proposes to:

•  Put in place a new methodology for calculating the discount rate in Scotland

•  Require the discount rate to be reviewed by the Government Actuary every three years

•  Give courts in Scotland the powers to impose periodical payment orders for future financial loss

We issued a legal alert detailing the crucial aspects of the Bill and a comparison with the situation in England and Wales. 

The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 was passed by the Scottish Parliament in May and received Royal Assent on 5 June.    This Act will bring in QOCS, DBAs and group proceedings.  Detailed information is available in our legal alert.  The Personal Injury Committee of the Scottish Civil Justice Council (SCJC) met in April and made nine recommendations which give an indication of how the mechanisms of the Act will work in practice.  Their recommendations include the loss of QOCS protection where a pursuer fails to beat a tender (with the award of expenses against the pursuer capped at 75% of any damages awarded) and where a pursuer's action is summarily dismissed. The Costs and Funding Committee of the Scottish Civil Justice Council will now draft rules relating to QOCS, exceptions to costs protection, third party funding and awards of expenses against legal representatives. 

Timescale – the SCJC is likely to be very busy with rule making and other matters relating to Brexit and we understand that as a result the Act will be phased in over a number of years.  What we don’t know is if there will be consultations on the various parts of the Act or if motions will simply be lodged before the Scottish Parliament to implement the individual parts of the Act.  We will monitor this closely. 

Following its introduction the Prescription (Scotland) Bill has now progressed to Stage 1 where the Delegated Powers and Law Reform Committee recommended the general principles of the Bill be agreed to when it reaches its stage 1 debate in Parliament later this month.  The Prescription (Scotland) Bill: Stage 1 report can be read in detail here.

Case Law

Insurers need a system to deal with Scottish litigation – in this case the Sheriff refused the defenders reponing note where decree had been granted against defenders who had no system to deal with Scottish court actions served on them - "In the present case, the defender cannot escape the fact that it had no system for dealing with the service of Scottish writs (or at least none that was explained to me)."

Broadley v UKI [2018] SC EDIN 34

 Prison – failure to protect inmate – the Scottish Government has lost an appeal in a £900,000 damages action brought by a prisoner who was the victim of a racially-aggravated assault.  Ministers, who are responsible for the Scottish Prison Service, had challenged the decision by a judge last year that they were liable.

Kaizer v The Scottish Ministers [2018] CSIH 36

Local authorities - standard of care - a car collided with the parapet of a bridge, which collapsed, the car fell over the side into the sea and the driver drowned.  Evidence was given that the parapet was defective, and that the local council responsible for the bridge had been warned about its dangerous condition years before the accident.  At first instance the defenders were found to be liable for the accident.  On appeal the decision on primary liability was upheld with 30% contributory negligence applied.

Bowes v The Highland Council [2017] CSOH 53

Bowes v The Highland Council [2018] CSIH 38

In Bowes the Inner House took the opportunity to clarify the requirements of a successful claim in these types of circumstances.

For a local council to be liable two things must be proved:

  • First, the injury must be caused by the sort of danger that would create a significant risk of an accident to a careful road user.  They don’t have to protect drivers from obvious dangers like bends, blind summits, snow and ice, visible road junctions, or things restricting the driver’s view such as buildings, trees, or the configuration of the road.
  • Second, the Council must be at fault in failing to deal with the hazard. This is by no means automatic. An injured person must prove that a reasonable local council would have identified the hazard and taken steps to correct it, whether by altering the road, or by placing suitable signs, or in an extreme case closing the road altogether. In this case, where the council had known for years that the bridge parapet was in a dangerous state, and had done nothing, ignoring its own engineer’s reports, it was obviously reasonable for them to have carried out proper repairs.

Abuse claims – level of damages - a man who was found guilty of sexually abusing his step-daughter (A) and her cousin (B) over a number of years starting when they were only eight years old has been ordered to pay damages totalling £200,000.

A v C & B v C [2018] CSOH 65

Lord Doherty heard that the pursuers A, 40, and B, 31, raised personal injury actions seeking damages from the defender C for sexual abuse carried out in the 1980s and 1990s.  

A – abuse began when she was eight and persisted until she was 19, the nature and severity of the abuse, frequency, duration and ages were considerations - solatium was assessed at £90,000 plus interest, with a further £10,000 for loss of earnings (£5,000 for past loss or earnings capacity and £5000 for future loss of earnings capacity) given the “detrimental effect” of the abuse on her earning capacity & £5,000 for medical expenses - Total £167,000. 

B - she suffered abuse over a 3-year period when she visited C’s home as a child – solatium was assessed at £20,000 plus interest – total £33,000.

Counter Fraud Scotland

The Counter Fraud Scotland team continue to disrupt the Scottish market with their innovative strategies to tackle late notified claims both pre and post litigation.  This month they have recorded savings on litigated late notified files in excess of £90,000 for one client.  In addition to the litigated savings, there were also significant savings pre litigation from a number of walkaways.  For more information on any of our strategies please get in touch with the team.

Event - Disrupt to Progress Roundtable

Our fifth Disrupt to Progress Roundtable will take place in our Glasgow office on 10 July.  It will continue our focus on claims management regulation and will bring together representatives from across the industry.  If you are interested in attending please get in touch with Jill Sinclair.

 

Scotland Child Abuse Inquiry

Scotland’s independent public inquiry into the abuse of children in care is no longer tied to the original timetable to report its findings by October 2019.  The Scottish Government has agreed to remove this requirement and instead the inquiry must now report as soon as reasonably practicable.

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

• Nazareth House in Aberdeen, Cardonald, Lasswade & Kilmarnock.

Lady Smith hopes to complete findings by the summer in relation to the previous case study of the institutions run by the Daughters of Charity of St Vincent de Paul.

The latest newsletter can be accessed here.  News and updates can be viewed via this link as the inquiry progresses. https://www.childabuseinquiry.scot/

Contact

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

 

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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.

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