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Scotland Focus

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

November 2019

Scottish Government

Scottish Government

2020 for QOCS

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

We are still no further forward with the final date for the introduction of QOCS.  The rules are being discussed by correspondence between members of the Scottish Civil Justice Committee and a decision is expected imminently. 

Once approved there needs to be a three-month period before commencement which will push the date for commencement into 2020. 

The introduction of QOCS in Scotland next year will be a major change for the insurance claims sector here and we will be monitoring closely the effect on volumes, litigation rates and fraudulent activity. 

Cases of Interest

  • Sheriff critical of insurer’s bid to avoid driver payout

Sheriff Jamie Gilchrist criticised a motor insurer’s attempt to avoid paying out for a road crash, because the driver had failed to declare a single speeding fine, as “rather extreme”.

“I find it almost impossible to believe that one fixed penalty for speeding three years old would prevent somebody from getting motor insurance”. He continued the case until after a change to UK law comes into effect that will prevent insurers from avoiding paying out for accidents, even if a policyholder misrepresented or did not disclose information.  

Read details of this in our alert  Changes to Road Traffic Act 1988 and declarations of policy avoidance

  • Clutha Fatal Accident Inquiry – system needs reform in Scotland

Sheriff Principal Craig Turnbull said it took "far too long" to hold a fatal accident inquiry into the Clutha helicopter disaster.  The Sheriff Principal made his determination into the incident which saw 10 people die when a helicopter, then carrying out duties on behalf of Police Scotland, crashed into the Clutha Vaults public house 6 years ago on 29 November 2013.

The central issue in the inquiry was why the pilot, Captain Traill, allowed the contents of the supply tank of the helicopter to deplete to the point it did when there was more than sufficient usable fuel available to him in the main tank to allow the helicopter to return safely to its base.  The inquiry concluded that the accident was caused by Captain Traill’s failure to ensure that at least one of the fuel transfer pump switches was set to 'on'.

Sheriff Principal Turnbull said: "The fact that it took more than two years from the publication of the AAIB Report to the decision that there were to be no criminal proceedings is surprising"

No recommendations were made in the determination, with the Sheriff Principal concluding that the circumstances of the accident were so unusual that it is improbable they will be repeated, even without the introduction of the safety actions taken since the accident.

James Wolffe, QC, the lord advocate, pledged in September this year to speed up fatal accident inquiries following reports that families can wait up to a decade for rulings.

Read the Clutha determination here    

  • Driven identity essential

Failure to prove identity of driver – a recent decision from the All Scotland Personal Injury Court highlighted the importance of a pursuer being able to identify the driver of the other vehicle.  In this case the defender was assoilized (absolved) as the pursuer did not prove on the balance of probabilities that the first defender was driving the vehicle that collided with her vehicle. 

"Usually in civil proceedings, of course, identification is not an issue because usually the identity of the driver involved is not in dispute. However, that should not obscure the fact that in civil cases, no less than in criminal ones, it is necessary to aver and to prove, albeit to a lesser standard of proof, that the person sued is the person who caused damage to the pursuer." Sheriff Braid

MICHELLE CHISHOLM AGAINST (FIRST) MOHAMMED MEHMOOD AND (SECOND) ERS CORPORATE MEMBER LIMITED [2019] SCEDIN79

Counter Fraud – Lawyer of the Year Blog

The Law Society of Scotland asked Jill Sinclair, Head of Counter Fraud (Scotland) to share her thoughts on her recent Lawyer of the Year award.   

Her advice – "push the boundaries, challenge the critics and be brave..."

You can read the blog here

Scottish Abuse Claims

Redress (Survivors of in-care abuse) Bill

The First Minister’s Programme for Government included a proposed Redress Bill to provide financial redress for victims and survivors of in-care abuse. This will be informed by a consultation on financial redress for in-care victims and survivors.

This consultation asked questions about:

• the design of a financial redress scheme; who will make financial contributions to the cost of delivering the scheme; how the scheme will be delivered, and how redress might fit alongside acknowledgement, apology and support.

The consultation closed this week and a response was submitted on behalf of FOIL.

Scottish Government Redress Scheme

The Scottish Government Advanced Payment 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. 

Abuse pre-action protocol –While progress has been slow we understand that a draft protocol has been prepared and should be circulated for comment in the near future.

Scottish Child Abuse Inquiry – The Autumn Newsletter can be viewed here which sets out their plans for the coming year.   

Contact

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.

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