Our monthly round-up of developments dominating the legal landscape in Scotland.
Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018
The rules on QOCS have been drafted and approved by the committee stage of the SCJC. The draft rules now need full committee approval, which we understand will be done via correspondence in the near future. If approved there needs to be a three-month period before commencement which will push the likely date for commencement into early 2020.
On DBAs, the Scottish Government has published an analysis of the submissions received in the consultation on success fee agreements under the Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018:
We understand the Scottish Government is finalising the secondary legislation for the regulation of success fee agreements and is aiming to have legislation laid before the Scottish Parliament next month.
Counter Fraud Success
Details of another great success for our counter-fraud team.
CCTV footage catches out fraudulent employee claim saving client over £35,000
Facts - The pursuer raised a claim for injury (burns to hand) and loss of earnings as a result of an accident at work. The pursuer initially claimed that his hand became trapped within the conveyor belt on a machine he was operating. He then altered his position and said the conveyor belt on the machine became stuck and that this was a regular issue with this particular machine. He also claimed that he and colleagues were under pressure by the defender to operate the machinery quickly and so he tried to fix the belt himself and in doing so, his hand became caught.
- Unknown to the pursuer, the defender recently installed CCTV cameras in the area concerned and there was footage capturing the incident in its entirety. We reviewed the footage with our in-house accident reconstruction expert and it was clear that the conveyor belt was visibly moving when the pursuer appeared to place his hand on the belt, before raising an alarm to his colleagues.
- We also lodged training documentation that supported the defender's position that the pursuer had received detailed training to seek assistance if any issues arose with the defender's machinery.
- The pursuer was also dismissed from his employment after the defender conducted a full disciplinary investigation into the incident.
- The medical report produced by the pursuer also confirmed that the pursuer was fit to work and therefore not entitled to loss of earnings.
Result - We raised the foregoing issues with the pursuer's solicitors, in particular, the initial inconsistencies in the pursuer's reporting of the accident and the significance of the CCTV footage. We then made an offer of abandonment, which was accepted.
Saving to client - £35,000
Scottish Abuse Claims
Scottish Government Redress Scheme
In April, the Scottish Government introduced an Advanced Payment Scheme. The scheme is open to anyone who was in care as a child and was abused in care in Scotland before December 2004. Payments of £10,000 are being be made on a discretionary basis to those who have a terminal illness or who are age 70 or over. More than 70 survivors of abuse in care (aged 70 or over) have already taken advantage of the scheme.
The Scottish Government has published a consultation on financial redress for in-care victims and survivors
The consultation closes on 25 November 2019 and DWF will be submitting a response individually as well as participating in the FOIL response.
Abuse pre-action protocol –The working party have met recently and while progress has been slow, we understand that a draft protocol has been prepared and should be made public imminently. We will continue to monitor this.
Scottish Child Abuse Inquiry – In October, the Inquiry will resume Phase 4 of its investigations into residential childcare establishments run by male religious orders. Last week the Inquiry published its Newsletter which can be viewed here and which sets out its plans for the coming year.
If you wish to discuss training for your teams or please contact Andrew Lothian who heads up our Scottish abuse team.
For further information please contact:
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
Caroline Coyle, Senior Associate and Professional Support Lawyer, Insurance on 0141 228 8132
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.