Defendant Insurance Team
QOCS in Scotland – Now in Force
After delays caused by Brexit and the pandemic, today sees the implementation of QOCS in Scotland.
All personal injury claims litigated from today will qualify for the benefit of QOCS protection as long as they do not fall foul of the exceptions whereby the claimant or their representatives makes "a fraudulent representation", acts in a "manifestly unreasonable" manner or behaves in a way that constitutes an "abuse of process".
The focus for insurers and their legal representatives will be the court's interpretation of the phrase "fraudulent misrepresentation" which, if established, causes one way costs protection to be lost, and 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 to run to trial.
DWF Scotland will be leading the way by working with clients to educate them on the changes, monitoring claimant behaviour and the courts' interpretation of the new rules. We are helping clients implement strategies to disrupt new claimant practices and take the right cases to court where we consider a robust defence should be maintained.
We have created a QOCS information guide and can offer bespoke training to clients. Our recent Virtual Defendant Insurance Conference which took place on 23 June and saw over 400 clients attend was very much focused on QOCS. If you were unable to attend, some of these sessions were recorded and can be requested by contacting Caroline Coyle.
Read our QOCS goes live 30 June 2021 article >
Cases of Interest
- DWF Counter-fraud success
Clare Simpson v Pret A Manger [2021] SC EDIN 33
The pursuer raised an action in the sum of £30,000 in the All Scotland Sheriff Personal Injury. The pursuer alleged that on 13 August 2018, when she was working in the course of her employment with Pret at the store in St Andrews, she hit her head on a lock on a door in the premises, at the bottom of a set of stairs. She alleged that the door was locked, when it ought not to have been. She claimed in respect of injury, loss of earnings, loss of enjoyment of holiday and general inconvenience.
DWF defended the matter on behalf of Pret. It was denied that any incident occurred. CCTV footage from the store was lodged in support of this.
Sheriff Campbell QC held that the pursuer failed to prove that she suffered an accident in the manner averred on record. Her recollection of the event was inconsistent. Her account in court contradicted elements of accounts given by her to others e.g her medical expert. She gave materially different accounts across the course of her oral testimony. She was contradicted by her own witnesses. The court was unwilling to accept her evidence except where it was supported by another reliable source. The CCTV footage did not show that the accident occurred in the way that was alleged.
- Bin lorry "secondary" victim claim fails on appeal
Our Graham Weatherston comments on the recent appeal decision
It is a sad fact that litigation follows major tragedies as night follows day. Not all outcomes seem necessarily fair and just to the consequences sustained by all the parties involved. Danielle Weddle v. Glasgow City Council [2021] SAC (Civ) 17 was an appeal to the Sheriff Appeal Court by a claimant who suffered severe psychological and psychiatric injury after being present at the scene of the Glasgow bin lorry fatal accident in George Square in December 2014. The Sheriff at first instance had ruled that the claimant had indeed suffered a severe reaction following the accident, leading to the likely loss to her of five years' career earnings, and a potential award of damages of over £200,000. However, on the basis that she had not actually suffered physical injury, nor feared injury at the time, and any such fear on her part would not have been reasonable in all the circumstances, she failed to qualify as a party entitled to recover damages in all the circumstances. The decision follows a line of legal authority commencing with Bourhill v. Young 1942 SC (HL) 78 and multiple cases arising from the Hillsborough disaster where distinctions are made between 'primary' and 'secondary' victims of tragic incidents leading to psychological and psychiatric injuries rather than direct physical injury.
The appeal court essentially found that the Sheriff at first instance's decision could not be reversed since his decision on matters of fact was justified. The court reviewed CCTV footage of the incident, and analysed the Sheriff's assessment of the evidence of a variety of witnesses. The importance of giving due weight to the court at first instance's unique ability to assess the evidence of witnesses seen and heard by it was emphasised.
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.
It has been another busy month for the team with negotiation training sessions for clients which have been very well received:
"I wanted to drop a quick note to say thank you for the training you did on Tuesday. It was fantastic and really useful. I have already used some of the tips and they worked a treat."
The team are able to organise bespoke training for claims teams and would encourage you to get in touch if required.
Also lots of excellent publicity for our Lindsay Ogunyemi with an article in the Journal of the Law Society of Scotland on letters of engagement and commentary in a new book " In her words" where women lawyers share their hopes for the future.
"I am not sure what the legal world will look like when the dust settles. Remote working appears to be here to stay. For some it is a blessing, for others it brings challenges. My hope as a woman in law is that the pandemic will lead to a more flexible way of woring. A recogmition that time spent in the office does not reflect productivity. Women are resilient and adaptable. These qualities are required now more than ever." Lindsay Ogunyemi, Director, DWF.
The Redress for Survivors (Historical Child Abuse in Care) Scotland Act 2021 (“the Act”) received Royal Assent on 23 April 2021.
What does this mean for insurers?
The Act 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 Act 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 redress scheme will also offer survivors access to some non-financial elements of redress such as acknowledgement, apology and therapeutic support.
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.
What now?
Secondary legislation needs to now be developed and laid before the Scottish Parliament. These regulations will provide some of the more technical detail needed to implement some aspects of the Act. These are required to be in place before the scheme can open.
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?
Disrput to progress – September 2021 dates to be arranged
Virtual Client Training Sessions – dates being organised directly
