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Scotland Focus

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

October 2018

Scottish Government

Damages (Investment Returns and Periodical Payments) (Scotland) Bill 

Stage 1 is scheduled to be completed by December 2018.

The lead committee on this Bill – the Economy, Energy and Fair Work Committee at Holyrood - heard evidence last week from the pursuer lobby which included representatives from APIL, the Faculty of Advocates and Thompsons solicitors.  The main thrust of their evidence was that overcompensation did not exist and that that Bill in its current form needs to be amended to protect pursuers from having to make risky investments in order to guarantee 100% compensation. 

The committee will hear evidence this week from the ABI and FOIL. 

The report produced by the Government Actuary's Department (GAD) indicates that on present evidence the discount rate could be around 1% under the mechanism set out in the Bill.  However, if the two proposed adjustments for tax and investment advice of 0.5% are made, this would mean the Scottish discount rate is 0%.

Abuse  - Apology and financial redress scheme

As an alternative to litigation the Scottish Government has confirmed it will legislate to introduce a financial redress scheme for survivors of abuse in care by 2021.  Details of the schemes are still to be revealed but it is believed it will be restricted to those who suffered “in-care” abuse.  It is also likely that next of kin of deceased survivors will be eligible to apply to the scheme.  The preferred approach to valuing the redress appears to be a combination approach with a standard payment tariff plus an additional award for each individual based upon their experiences. Factors to be taken into account include: the nature of abuse; the severity of abuse; the period of abuse; and the life-long consequences of the abuse. 

Fit for the Future – report of the Independent Review of Legal Services Regulation in Scotland

The report of a Scottish Government appointed review of legal services regulation, led by Esther Roberton, was published on 23 October 2018.  The main recommendations from the review are summarised below;

  • creating a new single regulatory body and removing the regulatory role of the Law Society of Scotland in regulating Scottish solicitors

  • The title “lawyer”’ should be a protected term, in the same way as “solicitor”, where only those able to demonstrate recognised legal qualifications, and who are regulated, are permitted to provide legal services.

  • The new regulator of legal services should review whether the Financial Conduct Authority regulation of Claims Management Companies in Scotland is working or whether there are gaps or discrepancies around Scottish circumstances that need to be more carefully considered.

On the horizon

Management of Offenders (Scotland) Bill – The Bill seeks to reduce the length of time most people with convictions have to disclose them and extend the length of sentence in relation to which disclosure is required from 30 months to 48 months.   

Proposed Recovery of Medical Costs for Industrial Disease (Scotland) Bill - a Bill to enable Scottish Ministers to recover, from the party responsible for causing an industrial disease, certain costs incurred by the NHS in providing care and treatment to those suffering from that disease.

Consultation on charges for the removal, storage and disposal of vehicles – this consultation is closed but it sought views on new levels of charges applied to the removal, storage and disposal of vehicles in Scotland. These charges will apply where the police or Local Authority have cause to remove or recover a vehicle in particular sets of circumstances.  We are now awaiting a follow up report. 

Case Law

RTA – damages/contributory negligence - A supermarket delivery van and a fuel tanker collided on a road in Drum, in January 2012. The lorry ended up in the pursuers garden, spilling thousands of gallons of aviation fuel.  Morag McKenzie, her daughter, and granddaughter sued DHL Services and Asda, which were the firms who had employed the drivers.  At the Court of Session, Lord Woolman said the crash had had a lasting impact on the family's lives and meant the family were unable to stay at the property for two years.  They were awarded £100,000 in compensation.  The judge ruled that van driver Tristan McKenzie was negligent and was 75% to blame, and that tanker driver Alan Robertson - who died in the crash - was 25% to blame.

Morag McKenzie & Other's v Asda & DHL [2018] CSOH 102

Abuse claims - Digby Brown Solicitors announced recently that they have been contacted by twice as many alleged survivors of child sexual abuse since the three-year limitation period on claims for damages was lifted last year.  They have said more than 1000 people have contacted them in the last year to raise actions arising from historic or sexual abuse.

Thompsons Solicitors have also raised proceedings for ten victims of abuse suffered at the hands of the Daughters of Charity of St Vincent de Paul, which ran Bellevue House and Smyllum Park orphanages.  Thompsons has been quoted as saying the claims will become a catalyst for many more claims. 

We have a specialist Scottish abuse team at DWF and would be happy to discuss these claims in further detail if any guidance is needed. 

Counter Fraud Scotland

We issued a legal alert detailing the recent case we defended which led to Sheriff Gilchrist encouraging the judiciary to challenge grossly inflated claims.  We are hopeful this will lead to a greater awareness among the Scottish courts of the existence of these types of claims. 

Our next Counsel Seminar will take place on Monday 19 November from 4pm to 5pm in our Glasgow office.  Our guest speaker is Scott Manson, Advocate, of Axiom Advocates and the seminar will focus on the role of the expert witness.  The Sheriff Appeal Court recently considered the role of the expert witness further in the case of Samantha Armstrong & Others –v- ERS Syndicate Management Ltd t/a Equity Red Star [2018] SAC (Civ) 28.  Ultimately, the medical expert's evidence in this case was held as inadmissible.  Join us to learn about the approach taken by Scott and DWF in this case to successfully challenge the expert evidence submitted. Contact Caroline Coyle for further details. 

                                                     

Scottish Child Abuse Inquiry

Earlier this month the inquiry published its first findings and concluded that the children did suffer abuse while at institutions run by the Daughters of Charity in Scotland, with a particular focus on Smyllum and Bellevue.  Phase 3 of the inquiry has commenced.  Evidence is to 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/

 

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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