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Scotland Focus

07 October 2021

A roundup of the key aspects relevant to the Insurance sector in Scotland and the work of our defendant insurance, counter fraud and professional indemnity teams.  

Insurance Scotland delighted with Legal 500 rankings and client feedback

We had some amazing results for our Professional Indemnity and Personal Injury-Defender teams.
Alison Grant, Lindsay Ogunyemi & Andrew McConnell had some fabulous quotes about their performance and service. 
"Alison Grant is simply one of the best solicitors working in this area in Scotland."
"Lindsay Ogunyemi would be my go to for accountants and other related services claims. She is very experienced and competent in this area"
"Andrew is their construction expert and would be happy for him to work on any of our construction related claims, no matter how complex."
Andrew Lothian, Jill Sinclair, Lynne Macfarlane & Julia McDonald also had excellent feedback and praise.
"Jill Sinclair is incredibly knowledgeable and approachable and has achieved some outstanding results"
"Lynne Macfarlane was invaluable in dealing with several complex and highly unusual personal injury cases"
"Andrew Lothian is very supportive and responds quickly with clear advice"
Thank you to all our clients for their support and feedback.

Cases of Interest

Loss of society and transmissible solatium – Biological and step relations of deceased 26 year old male with catastrophic injuries 

McArthur v Timberbush Tours Ltd [2021] CSOH 75, OH, Lord Armstrong, 22 July 2021.


  • Family members of a 26 year old male raised an action following his death when he was thrown from the basket platform of a cherry picker when the arm was struck by a bus, causing him to fall to the ground. 
  • The deceased had enjoyed very close relationships with each of the pursuers.
  • The deceased sustained catastrophic injuries and was conscious and in pain for about an hour before his death. 

DECISION  - A fair and reasonable award for transmissible solatium was assessed at £5,000.  In Scotland when assessing the appropriate levels of awards for loss of society, judges should have regard to jury awards in comparable cases as well as to past judicial awards.  In this case the court awarded as follows:

Mother                    £100,000    strong close relationship, deceased age, violent nature of death
Father                    £100,000    (as above)
Half-sister                  £45,000    close since birth, regular contact, lasting loss resulting in counselling
Step-father                £70,000    integral part of life since age 9, spent much leisure time together

DWF TAKEAWAY – this case continues the upward trend of damages being paid by Scottish courts in fatal claims and highlights the fact high awards made by juries can and will be followed by judges sitting alone.

Certification of skilled witness – Was instruction of expert reasonable and proportionate?

McKay v MCE Insurance Co Ltd, Sh Ct (Glasgow), Summary Sheriff C Lugton, 7 June 2021.

  • Personal injury sustained to back as a result of low speed impact collision
  • Before the accident the Pursuer was signed off work for pre-existing back pain
  • Pursuer's agents instructed an orthopaedic consultant report who noted the pursuer suffered an increased level of pain for an hour and the claim settled for £100.

ISSUE - The pursuer's agents sought certification of the orthopaedic surgeon under the Act of Sederunt (Taxation of Judicial Expenses Rules) 2019 (SSI 2019/75) r 5.3(2)(b) which the defenders challenged.  The defenders opposed the certification stating that it was not reasonable or proportionate to instruct an orthopaedic surgeon when the injury had been so minimal.  

DECISION - The motion was refused and held it was not reasonable or proportionate to instruct the expert in this case.  The case of Webster v Macleod [2018] SAC (Civ) 16, 2018 S.L.T. (Sh Ct) 429, set out the test for determining whether the employment of a skilled person was reasonable stating that (i) reasonableness fell to be determined objectively and at the time of the instruction: that required consideration of the state of affairs at the point of instruction; (ii) implicit in the concept of reasonableness was proportionality between the decision to instruct that skilled person at that particular time and the matters in issue or likely to be in issue.   The problem in this case was the pursuer's agents' failure to properly explore with the pursuer the nature and extent of his symptoms before proceeding with the instruction

DWF TAKEAWAY – It is worthwhile challenging the use of an expert if you consider it was not reasonable or proportionate.  You should ask questions about investigations made prior to the instruction of the expert to put pressure on the other side.  Further, if an expert is being proposed that you consider unnecessary then you could refer to this case to highlight your concerns.

Group proceedings planned for historic abuse claims

Group proceedings were only allowed in Scotland since last year. They enable groups of two or more people with the same, or similar, claims to raise a single action in the Court of Session.  Thompson's solicitors has indicated they will raise a class style action for the victims of abuse at Celtic Boys Club.  A number of people have already been convicted of abuse at the boys club.  This latest action aims to prove Celtic Football Club was responsible for the actions of those within the Boys Club.

Professional Indemnity Team – Prescription case success

DWF Success on Appeal regarding the question of prescription – When does the prescription clock start to tick?

Yesterday's Inner House Court of Session judgment in WPH Developments Limited v Young & Gault LLP (2021) CSIH39 provides welcome guidance regarding the application of the law of prescription in connection with an action for damages based on allegedly negligent architectural services which caused the pursuers to build on land they did not own.

DWF's Andrew McConnell acted on behalf of the successful Defenders / Appellants in this matter.

Read our case review

The team lead by Alison Grant and ably supported by Directors, Lindsay Ogunyemi and Andrew McConnell continue to grow their client base and are able to organise bespoke training for claims teams and would encourage you to get in touch if required.

Historic Abuse Claims – No Payments made into Redress Scheme

What does this mean for insurers?

The Redress for Survivors (Historical Child Abuse in Care) Scotland Act 2021 set up a scheme to make financial payments (‘redress payments’) to survivors of historical child abuse in care in Scotland.  

Information obtained under a freedom of information request shows that no organisations have paid into the Redress Scheme.
We considered it likely there would be a reluctance for organisations to sign up to this scheme despite the guarantee that payments would secure a waiver to protect organisations from further financial reparations in the future.  It was intended that the scheme would be open for application by the end of the year.   We will keep a close eye on developments here and report on further activity when it becomes available.  

Scottish Child Abuse Inquiry – Boarding schools come under scrutiny

Public hearings examining the abuse of children in boarding schools will continue on Friday 8 October 2021.

The Autumn newsletter detailing the work of the inquiry can be read here.

If you wish to discuss training for your teams please contact Andrew Lothian or Julia McDonald who lead our Scottish abuse team.  

What are we doing?
Disrupt to progress – December 2021 dates to be arranged 
Virtual Client Training Sessions – dates being organised directly

If you require any further information, please get in touch with one of the contacts below.

Further Reading