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Scotland Focus

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

September 2018

Scottish Claims Conference

On Friday 28 September we hosted our annual Scottish Claims Conference in our Glasgow office.  We have a wide variety of presentations from our own team members as well as some excellent guest speakers. Topics included:

  • Analysis of new legislation
  • An update on claims management regulation in Scotland
  • Trends and hot topics on the claims landscape
  • Case law update
  • Fraud focus

This event will be filmed so if you are unable to join us on the day and would be interested in viewing the content please get in touch with Andy or Caroline.

Scottish Government

Programme for Government 2017-2018 sets out the actions the Government will take in the forthcoming year. Family, children’s rights and health, including mental health and capacity, feature prominently, in the new legislative programme, alongside growing Scotland’s economy.  There are plans to introduce a new Consumer Protection Bill with a new regulatory body – Consumer Scotland.  All of this will of course be overshadowed by the high level of government work on Brexit. 

Restricted Roads (20 mph Speed Limit) (Scotland) Bill – the Bill is very much in its infancy having only been introduced this week.  The Bill’s purpose is to reduce the general speed limit on "restricted roads" from 30 mph to 20 mph.  The policy memorandum says there is a significant body of research which draws a causal link directly from slower speeds to outcomes such as fewer accidents, fewer deaths, better recovery rates for those injured and fewer long-term, persistent conditions resulting from collisions.  We will monitor its progress.

Damages (Investment Returns and Periodical Payments) (Scotland) Bill  - Stage 1 is scheduled to be completed by December 2018.

The Government Actuary's Department (GAD) has been consulted on various aspects of the proposed changes and have produced this report earlier this month.  Paragraph 1.6 seems to indicate as we expected the rate could be 1% based on the new legislation. 

1.6 Based on the economic scenarios used throughout our analysis, the expected returns on the portfolios considered at December 2017 were in the range of 0.3% - 1.8% pa above RPI (considering the median return), with the baseline portfolio returning 0.9% pa above RPI.

However, if we still have to make the two adjustments for tax and investment advice of 0.5% this will leave a rate of 0%. 

Also this month, a Scottish Parliament briefing looks at the proposals in the Bill as well as providing contextual information about the system for making personal injury claims.

We are liaising with the lead committee at the Scottish Government and have submitted a response to the call for evidence on behalf of FOIL. 

UK Government

Nuisance calls  - Business directors could be personally fined up to £500,000 if they fail to prevent nuisance calls, under a UK Government consultation on the issue. Three of the four worst affected cities are in Scotland.  This consultation seeks views on the option to amend the Privacy and Electronic Communications Regulations to allow the ICO increased powers to impose fines of up to £500,000 on those who breach the Regulations.  The consultation has just closed and responses are being analysed.

While there has been a big recent increase in the fines issued to companies – last year in England one company was fined £400,000 for making almost 100million automated calls in 18 months – there is concern this has not been a sufficient deterrent.

Case Law

Fatal Accident Inquiry - Under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 into the death of Kenneth Alexander Monk - September 2018

Andrew Lothian, DWF represented clients, Serco, at the above Inquiry.  In this case the cause of death of the prisoner, Mr Monk, was hanging.  Following a suicide attempt on 29 May 2016 Mr Monk was placed under a new care plan for those at a heightened risk of suicide.  Following close monitoring he was assessed on 8 June 2016 as "no apparent risk" and removed from the heightened risk care plan.  Sadly, Mr Monk took his own life two days later. 

Of particular note in the Sheriff's determination were the constructive comments that the change of care plan was a decision open to the prison officers at the time.  Evidence from a consultant forensic psychiatrist highlighted that suicide is difficult to predict and even if Mr Monk had remained under heightened supervision for another couple of days or been under a fifteen-minute observation regime, he may have been able to take his own life, if he was intent on doing as he did.

Sheriff Principal Murray went on to say:

"There was no evidence before the inquiry which provides a basis to conclude that there were any reasonable precautions which could reasonably have been taken which would have prevented the death."

There was no criticism of Serco with formal findings only, and some very positive comments about Serco's systems and procedures.

Stress at work claim proceeding - Scotland’s top law officer has failed to have a £1.3m legal claim from a lawyer who alleges she suffered stress working as a prosecutor dismissed. Laura Malone alleges that Lord Advocate James Wolffe QC, as former head of the prosecution service in Scotland, failed to prevent her suffering stress caused by overwork.  The case will now proceed to a full hearing.

Counter Fraud Scotland

Our counter fraud team continue to disrupt the market in Scotland.  We had an excellent result for a client recently where the Sheriff in his judgement critisised the pursuer and spoke out about the negative impact the pursuit of grossly exaggerated claims has on the cost of motor insurance.  Read more about the judgement here.  

Our next Disrupt to Progress Roundtable will take place on 2 October and will focus on the role of medical experts.  We will have attendees from Medco, the medical profession in Scotland as well as representatives from legal, regulatory and consumer bodies. 

Scottish Child Abuse Inquiry

Phase 3 of the inquiry will commence on 23 October 2018.   Evidence will be heard in relation to residential child care establishments run by non-religious and voluntary organisations. 

In the summer 2019, phase 4 of hearings will investigate residential child care establishments run by male religious orders

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/


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.