Our monthly round-up of developments dominating the legal landscape in Scotland.
Our legal alert detailing the Stage 1 debate on 18 December can be viewed here
The Bill has been amended by the Scottish Parliament's Economy, Energy and Fair Work Committee at Stage 2. We welcome the amendments particularly those to extend the review cycle for the Discount Rate in Scotland from three to five years in line with England and Wales, and to require Scottish Ministers to consult on the make-up of the notional investment portfolio when the Discount Rate is reviewed. We now wait for confirmation of the date for the Stage 3 debate and vote, which is expected to take place at Holyrood next month.
The Act continues to be implemented on a piecemeal basis. The Scottish Government is consulting on proposals for success fee agreements under part 1 of Act.
Strategic Issues to consider:
• Response to consultation on success fee agreements – it is imperative to reiterate to the Scottish Government that pursuer solicitors in Scotland are already paid up to three times for each case: the expenses recovered from the defenders; the fee which the solicitors charge their client; and in complex cases an additional fee awarded by the court. DWF will be making a submission and have been involved in preparing the FOIL response.
• QOCS – likely to come in mid to late 2019 unless delayed further by Brexit considerations.
• Fraudulent misrepresentation – how the courts define this and remove QOCS protection will be essential in determining how much it will deter pursuer solicitors from raising unmeritorious claims.
Abuse Claims – a new era in 2019
It is likely 2019 will be the year we see these claims start to make an impact on insurers.
Litigation rates for these claims have increased in the last 6 months with Digby Brown and Thompsons discussing in the media the large volume of claims they are pursuing.
Some insurers have been settling claims where there has been a criminal conviction or not proven verdict but it looks like the more difficult claims where there has been no prosecution or indeed an unsuccessful prosecution will come to the fore in 2019.
Other incentives for an increase in abuse claims will be the advent of QOCS, the Scottish Government's financial redress scheme for abuse victims and a Voluntary Pre-Action Protocol for historic abuse cases.
Motorcyclist overtaking/ colliding with rear of vehicle – this case involved a road traffic accident where unusually the car driver, whose vehicle was struck in the rear by a motorcyclist, was held 100% negligent. The car driver on seeing the motorcyclists in her rearview mirror became apprehensive, slowed down and came to what could be described as an emergency stop. Sheriff McGowan commented:
"the mere fact of one vehicle having collided with the rear of another vehicle in front does not of itself give rise to the presumption that the driver of the following vehicle has been negligent"
There is also a useful discussion of awards for wrist, knee and neck injuries and discounts applied for multiple injuries (in this case reduced by about one sixth).
Inconvenience claims – an up to date reminder for all to argue against paying this head of claim with Sheriff Fife stating:"Any inconvenience claim was very modest and is taken into account in the assessment of solatium."
Counter Fraud Scotland
The team have had a great start to the New Year with news that they have been shortlisted as finalists for two awards in the Scottish Legal Awards:
- Lawyer of the Year – Jill Sinclair
- Legal Technology Award (for the team's work in using telematics to target fraud)
We have a great history with these awards and hope to continue the trend this year.
Our next Disrupt to progress event will take place on 27 March and will focus on motor insurance and motor finance fraud.
Professional Indemnity Scotland
Prescription (Scotland) Act 2019
On 18 December the Prescription (Scotland) Bill received Royal Assent and became the Prescription (Scotland) Act 2018
We await further regulations to bring the main changes into force.
The most significant change is the change to when the five-year prescriptive period will start to run. The Act provides that the prescriptive period will not start running until the creditor is aware, or could with reasonable diligence have been aware, of the following three elements:
• The occurrence of loss, injury or damage;
• The act or omission which caused the loss, injury or damage; and
• The identity of the debtor in the obligation to pay damages for the loss, injury or damage.
For any further information please contact Alison Grant who heads up our Professional Indemnity team in Glasgow.
Scottish Child Abuse Inquiry
Lady Smith is due to release her findings soon on the second case study which heard evidence about institutions run by the Sisters of Nazareth. Phase 3 of the inquiry has commenced with a case study about residential childcare establishments run by:
- The Aberlour Child Care Trust
In the summer 2019, phase 4 of hearings will investigate residential childcare establishments run by male religious orders
News and updates can be viewed here.
We are planning our events schedule for 2019 and will be in touch with further details.
Save the date - We are pleased to let you know we will be holding our very successful Scottish Claims Conference again this year on Thursday 12 September 2019. Invitations will be sent out in the next few months.
For further information please contact:
Caroline Coyle, Associate, Professional Support Lawyer Insurance on 0141 228 8132
Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305
Alison Grant, Partner, Professional Indemnity Scotland on 0141 228 8127
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.