Our monthly round-up of developments dominating the legal landscape in Scotland.
Scottish Government/Legislation update
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.
Highlight - Group procedure
The Act will introduce a special class action procedure - referred to as “group procedure” in the legislation. This is likely to bring about an increase in future “mass” litigation. The new group procedure will only be available in the Court of Session for claims in excess of £100,000, and there must be a minimum of two claimants.
While we await publication of the final rules there is no doubt that this will have a significant bearing on how mass claims are litigated in future. We monitor these developments closely.
Highlight – QOCS
The Scottish Civil Justice Council (SCJC) in its recent newsletter noted that the Costs and Funding Committee had agreed that draft rules relating to QOCS should be prepared for consideration. This suggest that the introduction of QOCS may be one of the first parts of the Act to come into force.
The Prescription (Scotland) Bill has completed Stage 1 and the Parliament agreed to the general principles of the Bill. The Bill seeks to amend the law relating to the extinction of rights and obligations by the passage of time.
RTA Liability – undertaking manoeuvre - passenger - the pursuer was involved in a serious road traffic accident. She was the passenger in a vehicle driven by her partner which crashed in to a HGV on a roundabout. He died as a result of the crash. She sued the insurers of his vehicle who in turn introduced a third party who was the der of a vehicle which had undertaken the deceased's vehicle on approach to the roundabout. The argument was that the third party's actions in undertaking the deceased's vehicle caused or materially contributed to the accident and so there should be an apportionment of the damages.
Lady Clark found the deceased fully at fault stating "In my opinion, even if the deceased was aware of the driving and acceleration manoeuvre of the third party, none of that should have distracted a driver exercising reasonable care and cause such a driver to drive with excessive speed towards a roundabout which was obvious. In the evidence there is no explanation which I accept on the balance of probabilities as to why the deceased drove in the way in which he did."
Disease - family awards - The family of Mrs Thacker, who died aged 67 from metastatic mesothelioma caused by exposure to asbestos, have won £360,000 in damages. The Court of Session ruled that North British Steel Group Plc was liable to the family after concluding that the deceased was exposed to "substantial" levels of asbestos while working in the dressing shops of its foundry in Armadale in the 1960s.
Having found that the deceased was exposed to asbestos dust, the next issue was whether the defender took all practicable steps to protect their employees, including Mrs Thacker, against injury, but there was “no evidence about any measures at all being taken”.
Damages for the family members were set at a total of £360,000, with £295,000 to be awarded to Mrs Thacker’s husband, £35,000 to her daughter, £15,000 to her granddaughter and £15,000 to her sister.
Disease - Domestic exposure to asbestos results in liability - Relatives of a widow who died from exposure to asbestos dust from washing her husband's work clothes have been awarded £247,000 in compensation. The mother-of-three, from Paisley, had never smoked but the Court of Session in Edinburgh heard that her late husband, William, used to return home from work with his overalls and underclothes "covered" in asbestos dust while employed as an engineer. She would turn down the rolled up sleeves of the overalls and shake the dust out of the clothes before washing them in a separate wash house.
Lady Carmichael said it was probable Mrs Sweeney had "shook out and washed clothes visibly contaminated with dust, at least once a week, over a period of years".
This is the first secondary exposure decision in Scotland and in certain circumstances will extend the duty of care of employers to family members of employees.
Expert certification refused – 6 weeks' post-accident premature for orthopaedic expert - Excellent decision for defenders where the sheriff refused to certify an orthopaedic surgeon as a skilled witness.
Timeline of events:
30/10/17 – road traffic accident
01/11/17 – pursuer consulted GP – diagnosed with whiplash
09/11/17 – statement taken from pursuer who was still suffering from neck and back pain
08/12/17 – letter of instruction sent to orthopaedic consultant
26/01/18 - pursuer was seen by the expert and diagnosed with a soft tissue injury
When refusing sanction Sheriff McGowan considered the relatively quick return to work and the absence of any long term sequelae, were key factors stating:
" the instructions of a consultant report at that stage (6 weeks' post-accident) was disproportionate and premature and it was not reasonable"
Scottish Civil Justice Council
The SCJC released its Annual Report 2017/18 and Annual Programme 2018/19. In this they highlighted the key priorities for 2018/19 below:
• Simple Procedure – review of the core Simple Procedure Rules and extension of those rules for special claims
• implementation of the remaining recommendations of the Scottish Civil Courts Review
• implementation of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018
• Brexit-related amendments
• improvements to court procedures
• review of new rules
• judicial rate of interest.
It's likely the Brexit issue will dominate the workload initially but it seems there is a strong commitment to prioritise implementation of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018. It is interesting to see the judicial rate of interest on the table and we will report if there is any movement on this.
Counter Fraud Scotland
Our fifth Disrupt to Progress Roundtable which was based on CMC regulation was a great success with a diversity of attendees from across the legal, regulatory and consumer industries.
We are hopeful our next DTP will take place in October and will focus on medical experts in Scotland. We hope to have attendees from the medical profession in Scotland as well as some representatives from MedCo.
Scotland Child Abuse Inquiry
With Phase 2 now complete the Inquiry will commence Phase 3 on 23 October 2018. The closing address for Stage 2 from Lady Smith can be read here.
During Phase 3 evidence will be heard in relation to residential child care establishments run by non-religious and voluntary organisations. These will include:
• Quarriers Village
• The Aberlour Child Care Trust
The inquiry will provide its final report as soon as reasonably practicable.
News and updates can be viewed via this link as the inquiry progresses. https://www.childabuseinquiry.scot/
Scottish Law Commission
Law reform project - Damages for personal injury - The SLC are considering reform in the areas below over the next few years:
- Extending the awards of damages for services beyond "relatives"
- Deductibility of private health insurance and residential care costs
- Provisional damages – to protect against pursuers being under-compensated as a result of having to raise proceedings before the full extent of the injury is known.
- Protection for awards of damages to children (perhaps like the system currently in place in England and Wales)
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.