I'm interested in…

  • Strategy & Procedure
  • Motor
  • Fraud
  • Disease
  • Catastrophic Injury
  • Commercial Insurance
  • Costs
  • Liability
  • Local Authority
  • Professional Indemnity
  • Scotland

Scotland Focus

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

February 2019

Scottish Government

Proposed Recovery of Medical Costs for Industrial Disease (Scotland) Bill

Stuart McMillan MSP has lodged the final version of his Proposed Recovery of Medical Costs for Industrial Disease (Scotland) Bill at the Scottish Parliament.  If passed, this Member’s Bill would “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.” This would not be applicable on a retrospective basis, removing our primary concerns about the previous version of this Bill. The Proposed Bill needs to gather the support of 18 MSPs from at least three Holyrood parties within the next month in order to go forward and then the Bill needs to be formally introduced by June 2020 in order to proceed.

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

Hamish Goodall from the Scottish Government recently advised the Scottish Civil Justice Council that Stage 3 of the Bill would take place in March 2019.  At this stage, there will be a debate before the whole Parliament on any amendments selected for debate. 

The Bill would see a change to the "personal injury discount rate" so the UK Government Actuary, not Scottish ministers, decides the discount rate. The Bill would also allow Scottish courts to impose periodical compensation payments. 

Likely indications are that reform of the discount rate is likely to result in higher awards for Scottish claimants compared to their English counterparts.

Our legal alert detailing the Stage 1 debate on 18 December can be viewed here

Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018

The Act continues to be implemented on a piecemeal basis. The Scottish Government recently consulted on proposals for success fee agreements under part 1 of Act. We participated in the FOIL response and submitted our own response.  We considered it necessary to emphasise and 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.  We will continue to work with the ABI to highlight this to the Scottish Government.

With regard to QOCS, we have no firm indications of when we may see this implemented.  We have heard from several sources that it is likely to be mid to late 2019 but that of course very much depends on how much time is taken up with Brexit considerations. 

Caselaw

Professional Indemnity – professional searchers - duty of care?  -  An interesting judgement has been published this month where the Sheriff Appeal Court were tasked with deciding whether a firm of professional searchers, instructed by the seller of heritable subjects to carry out a search in the Register of Inhibitions and Adjudications, owed a duty of care to a creditor who has registered an inhibition in that register.  It was held that they did indeed owe a duty of care.  We consider it may be subject to appeal and will keep this under review.

Commodity Solutions Services Limited & Charles Henry Sands v First Scottish Searching Services Limited [2019] SAC (Civ) 4 DNF-A162-16

Road traffic accident – fatality - pedestrian
This case provided an interesting insight into employees' duties and the importance of visibility of pedestrians when deciding issues of liability and contributory negligence.

In this case, the pursuer was killed when she was stuck by a tourist bus that was turning in the car park of a visitor centre.  The pursuer was employed by the centre and habitually would go and welcome tourist buses when they arrived.  It was held that her employers and the driver of the bus were jointly liable with contributory negligence at 30% as the pursuer was held to have approached the bus when it was mid-manoeuvre.

Cassells v Allan [2019] CSOH 14, OH, Lady Carmichael, 12 February 2019.

Scottish Abuse Claims

Scottish Child Abuse Inquiry - the inquiry continues to hear evidence at Phase 3 of its public sessions. Phase 4, looking at residential childcare establishments run by male religious orders, is due to start in summer 2019.  News and updates can be viewed here

Abuse pre-action protocol – we are liaising with the Law Society of Scotland about the progress of the abuse protocol.  The working party are due to meet at the beginning of March and thereafter we are hoping we can become involved with the group looking to finalise the protocol.

Scottish Government Redress Scheme - On 30 January 2019, the Scottish Government expanded on its commitment to introduce a financial redress scheme for survivors of childhood abuse in care in Scotland. The extra detail now provided is that:

  • there will be a full public consultation on the proposed statutory scheme later in 2019
  • advanced or “fast track” payments may be made “from April 2019”.

DWF publication – we will be sending a UK wide publication on abuse claims to all clients with an interest in this area and relevant Scottish updates will be detailed in this.

If you wish to discuss training for your teams or consider outsourcing abuse work please contact Andrew Lothian who heads up our Scottish abuse team. 

Events

Our next Disrupt to progress event will take place on 27 March and will focus on motor insurance and motor finance fraud.

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. 

Contact

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.

Top