QOCS - Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018
It’s a bit of a waiting game now for QOCS. The rules are being discussed by correspondence and a decision is expected before the full council meeting of the Scottish Civil Justice Council during November 2019.
If approved there needs to be a three-month period before commencement which will push the likely date for commencement into early 2020.
Impact – the advent of QOCS to Scotland is likely to generate an increase in claims. We understand a case has been made to the Scottish Government for the introduction of a claims portal like that in England and Wales. This would hopefully allow claims to be resolved faster for pursuers and prevent cases unnecessarily being taken to court. We will report on any further progress.
Discount Rate - Damages (Investment Returns and Periodical Payments) (Scotland) Act 2019
We raised our concerns about the new discount rate in Scotland in our recent alert. The Forum of Insurance Lawyers have also voiced their concern commenting:
"It is likely that we will now have different discount rates north and south of the border for several years to come. The lower Scottish rate means that Scottish claimants will receive higher compensation payments. The differential is therefore likely to result in injured people raising claims in Scotland rather than England & Wales if they can. It is feared that this forum shopping will cause delays and higher costs.
The new rate is very disappointing for the insurance industry, which considers that the rate does not adhere to the principle of 100% compensation. This new rate artificially boosts compensation payments well beyond those being paid in the rest of the UK. As a result it is likely to mean increased costs which will have to be borne by Scottish taxpayers and policyholders."
We certainly intend to work with our contacts in the industry to present our views at the first five-year review in 2024.
Proposed Recovery of Medical Costs for Industrial Disease Bill
Stuart McMillan MSP has secured enough support for his Bill to be introduced. It would seem unlikely that there will be time to consider this in the near future. He has until June 2020 to introduce a Member's Bill so it may well be raised after the Brexit position is clearer.
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.
The consultation closes on 25 November 2019 and DWF will be submitting a response individually as well as taking part in the FOIL response.
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.
Abuse pre-action protocol –The Law Society of Scotland working group have met recently and while progress has been slow. We understand that a draft protocol has been prepared and should be circulated for comment imminently. We hope we can become involved at this stage to present our opinions.
Scottish Child Abuse Inquiry – The Inquiry has resumed its investigations into residential childcare establishments run by male religious orders (Christian Brothers, the Benedictines and the Marist Brothers).
Towards the end of the year the inquiry will move their case study into child migration.
The Autumn Newsletter can be viewed here which sets out their plans for the coming year.
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.
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