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Scotland Focus April 2021

28 April 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.  

Defendant Insurance Team

QOCS UPDATE – 30 June 2021 D-day!
After delay caused by Covid-19, one way costs shifting is almost upon us. The rules are expected to come into force for all personal injury, disease and fatal claims for actions litigated on or after 30 June 2021.  

The rules have this week been under active consideration and discussion by the Scottish Civil Justice Council (SCJC). A virtual meeting took place on 26 April as detailed in the SCJC newsletter and it is anticipated draft rules will have now been agreed.   

Delay has also been caused in part by ongoing discussions around the procedure relating to tenders. How should the legislation approach the situation where a pursuer delays in accepting a tender?  Should the application of the cap on QOCS, on the amount of damages received, be applied or disapplied where there is an unacceptable delay on acceptance? We await the final version of the legislation with interest.

The focus for insurers and their legal representatives will be  the court's interpretation of the phrase "fraudulent misrepresentation", which if established, causes the one way costs protection to fly off, and full costs to be awarded. What constitutes "fraudulent misrepresentation" will be the ongoing battleground and the team in Scotland with its expertise in fraud  is ideally placed to identify the most appropriate test cases.

Cases of Interest

Limitation lesson – The dangers of cross-border litigation 
The recent case of Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021) provides a stark warning for English claims handlers and solicitors.

In Scotland to ensure there are no missed triennium claims make sure you and your teams are aware that all personal injury court actions need to be SERVED not just issued within the 3-year period. 

In this particular case the claimant was seriously injured in a road traffic accident in Scotland. He issued proceedings in England.  Proceedings were issued within the three year limitation period. However, Scottish law requires proceedings to be served within the three year period. The claimant served outside that period. The defendant took the point in relation to limitation, asserting that the claim was statute barred.

The claimant had to rely on the court’s discretion under s.19A of the Prescription and Limitation (Scotland) Act 1973 to allow the action to continue.  S.19A has  much more restrictive discretion than Section 33 of the Limitation Act 1980.  The claimant was successful but this should serve as a stark reminder of the difference in approach between the jurisdictions.

Covid-19 pandemic refund claim – one of the first in UK
Dumfries & Galloway Council v NST Travel Group Limited [2021] 4 WLUK 156

In this case the pursuer sought a refund of £29,452.50 following the cancellation of a school trip to London due to take place on 23rd March 2020. The trip was cancelled on 17th March 2020 as a result of the Prime Minister’s 16th March prohibition on unnecessary travel.  

Both parties agreed that The Package Travel and Linked Travel Arrangements Regulations 2018 applied to the booking and that the pandemic constituted ‘unavoidable and extraordinary circumstances’.  However, the defenders argued the contract had been frustrated and as such, they were entitled to deduct the cost of arranging the trip.

This was rejected by the Sheriff who considered the pursuers inability to participate in the contract due to the extraordinary circumstances entitled them to a full refund. 

Professional Indemnity Team

The team lead by Alison Grant and ably supported by Directors, Lindsay Ogunyemi and Andrew McConnell continue to grow their client base and in the last few months have had some excellent results resulting in significant client savings.

The team are able to organise bespoke training for claims teams and would encourage you to get in touch if required.

Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Bill was unanimously passed in the Scottish Parliament on 11 March 2021.  The bill will now proceed to Royal Assent to become an Act of the Scottish Parliament.

What does this mean for insurers?
The Bill as introduced sets up a scheme to make financial payments (‘redress payments’) to survivors of historical child abuse in care in Scotland. In circumstances where the survivor has died, these can be paid to the deceased's partner or children. The Bill sets up a new independent public body, Redress Scotland, to make decisions about payments. It is hoped that it will open for applications by December 2021. The scheme replaces the Advanced Payment Scheme which is available for survivors who are terminally ill or age 68 and over.  

The Bill allows organisations involved with residential care of children in the past to pay financial contributions to the scheme. In return, survivors who accept a redress payment will have to agree not to take legal action against these organisations or the Scottish Government.

There has been an understandable reluctance on behalf of insurers to voluntarily sign up to this scheme and it remains to be seen whether this will prove a successful way of dealing with these difficult cases.  

Scottish Child Abuse Inquiry – Boarding schools come under scrutiny

After delays due to the pandemic Phase 2 of public hearings examining the abuse of children in boarding schools will commence on Tuesday 4 May 2021.
Phase 2 will begin by hearing evidence relating to Loretto School in Musselburgh, and Morrison’s Academy in Crieff, during the time it was a boarding school. Dates for public hearings relating to the following five schools will be confirmed as soon as possible:

  • Fettes College, Edinburgh
  • Gordonstoun School, Elgin
  • Keil School, Dumbarton
  • Merchiston Castle School, Edinburgh
  • Queen Victoria School, Dunblane 

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?

  • Scottish Virtual Conference  - Summer 2021
  • 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