Litigation costs in Scotland- Taylored to fit

Published February 2, 2012 employer's liability , public liability , road traffic , trips and slips Leave a Comment

 We are finally talking money in Scotland. For a change it’s not independence related or how much England subsidises us (or vice versa).

Almost two years since LJ Jackson made waves with his report on costs in civil litigation in England, recently retired former Sheriff Principal James Taylor is leading a review of the costs system in the Scottish Civil Courts. By costs we’re talking about legal expenses.

At Brodies we’re currently knocking heads on penning responses to many of the questions the review is seeks views on. The full consultation paper can be found via the Taylor Review pages of the Scottish Government website.

At 130 pages long, there’s a huge amount covered in the consultation. It would be difficult to summarise all the issues noted here so a bite size tour seems more appropriate. Over a few blogs we’re going to highlight some of the issues raised. Perhaps this will help in formulating responses to questions in the review which are invited from anyone whether in Scotland or elsewhere, court users or not.

The Taylor costs review builds on the Lord Gill review which made recommendations on reforming the Civil Courts structure in Scotland. The Scottish Government remit for Taylor was to examine the effect of costs on access to justice and making Scotland a forum of choice for litigation.

The review then deals with the following topics in turn which I’d suggest we come back to in further blogs:

  • Predicting costs and systems of predictability
  • Referral fees
  • Insurance- After (ATE) and Before (BTE) the event
  • Damaged Based Agreements (DBA), third party & alternative funding sources

With almost daily comment on many of these issues in mainstream media, it seems timely that this review is encouraging debate from those engaged in litigation. While arguably we are following in the shadow of the Jackson report, there are issues unique to the Scottish market and (our own sphere at BClaims) of personal injury. Personally I hope that the review proves to be the catalyst we need to make Scottish litigation more modern, efficient and, why not, internationally respected.

Make sure to subscribe or follow us on twitter for more in depth comment in the next few weeks.

Ciaran Dougherty

Justice Secretary Latest Proposal – No Compensation for Criminals

Published January 31, 2012 criminal injury Leave a Comment

It was recently reported on the BBC News website that the Justice Secretary, Ken Clarke has proposed that the scheme for pursuing a claim for criminal injuries be completely reformed.

He argues criminals seeking compensation often causes public outrage.  Criminal Ian Huntley’s £15K claim for compensation from the Criminal Injuries Compensation Authority following an assault with a makeshift knife by another inmate at Frankland Prison in Durham in March 2010 was widely publicised.

The CICA reported at the time that Mr Huntley was not successful with his application due to the nature of his crimes and made it clear that the scheme precludes claims for persons with very serious criminal records. This appears contradictory to BBC reports that within the £75 million paid out to criminals under the existing scheme, there was a successful claim by a convicted rapist and someone convicted of two killings.

Mr Clarke’s proposals are that only in exceptional circumstances will criminals be awarded compensation as victims of crime.  What is “exceptional” though? The circumstances of the attack or the criminal record or both?   Does the current system not already reflect this?

The rules under the current scheme see money from fines paid by criminals going in to the CICA pot.   Criminals who are not fined do not contribute anything, supporting Mr Clarke’s contention that criminals who commit the most serious of crimes should pay toward compensating victims of their crimes.

Would a complete ban on claims made by convicted criminals be a better approach, both for simplicity and public interest? This approach could equally be unfair to victims with minor or non-violent criminal records.

This is by no means a straighforward issue.  It will be interesting to see the full reform plans from Mr Clarke and, ultimately, what difference they will make to the operation of the scheme as far as victims are concerned.

At BClaims we have extensive experience of dealing with CICA claims and appeals. Please get in touch with us for further information.

Brief encounter

Published January 6, 2012 trips and slips Leave a Comment

The recent decision in the case of Colin Syme v East Lothian Council represents something of a victory for brevity.  So I will try to keep this short.

The case involves a tripping incident raised under the Sheriff Court personal injury procedure. The defenders took issue with the pursuer’s written pleadings and opposed the fixing of a proof. Their position was that certain aspects of the written case were irrelevant and should not be allowed to proceed as part of the case and, moreover, if those averments were deleted there would be no relevant averments of fault at all. They raised those arguments at a “debate” – a hearing where parties can raise legal issues which go to the heart of the case.

Having only ever worked with simplified pleadings, I have heard many anecdotes from senior colleagues beginning “Back in my day…” and often ending with war tales about lengthy debates or convoluted pleadings covering all bases but addressing none. So I geared myself up for a lengthy read…

It was all over very quickly. 

Sheriff Braid begins by commenting that pursuers using the simplified procedure are now expected to make only limited averments, including “brief facts necessary to establish the claim” and “brief details of the injuries and heads of claim”. He considered that the pursuer’s case was “sufficiently relevant and precise”.  A proof should be allowed even when the pursuer’s averments are brief (which he emphasises they should be) even when the averments would not have been sufficient under traditional rules of pleading – subject only to a requirement that a defender be given fair notice of the case he has to meet.  However, he comments that even then any deficiency in the pursuer’s pleadings is as likely to be dealt with by disallowing evidence at a proof rather than at any earlier stage.

Sheriff Braid went further though and also questioned whether the rules really allowed him to fix a debate in any event. That casts doubt on whether there is still any role at all for legal debates  in personal injury cases in the sheriff court. It is certainly generally accepted that there is less scope now to succeed in a case using an argument based purely on the way in which a written case has been framed, but interpreting the rules as getting rid of debates completely would be a major step.

 

Greg Mcewen

Secondary victims, Boots the Chemist, crystal balls and a rolling pin….Simples?

Published November 17, 2011 public liability Leave a Comment

Just when you think the Court of Session in Edinburgh has had its fill of interesting and different cases for 2011 (see David’s blog on the golf case here ) even odder cases pop up with fascinating facts and legal issues. Perhaps just an average week in the life of a judge…

The case in question involves a 20 month year old infant suffering a fractured skull after being hit in the head by a rolling pin dropped from a 3rd floor window. Boots have admitted liability in respect of the child’s claim but liability to the other members of the family is disputed. Quite what Boots are doing with rolling pins falling from windows in shopping centres in Dundee is unknown and not detailed in Lord Stewart’s excellent description of the accident in paragraph 4 and 5 here .

The child was accompanied by her mother, grandmother and grandfather at the time of the accident but only the grandmother was close to the infant when the baking implement fell. All three have brought actions against Boots for “distress and alarm and various mental symptoms”.  This relatively straightforward event gives rise to all manner of interesting legal argument. Which family members are “primary” and which “secondary” victims?  Is the current written case sufficiently detailed to allow secondary victims to argue they are in any way injured?

The question before the Court at this stage (evidence has yet to be heard), was whether to continue to run the case under the dedicated Personal Injury procedure rules or return to “ordinary” procedure. The latter requires a far more detailed written case. Boots argued the cases of mother, grandmother and grandfather, as secondary victims would involve complexity and require detailed pleadings. To be successful, a secondary victims would require to be suffering from a recognisable psychiatric conditions, something litigation arising from the Hillsborough tragedy established.

This case is at an early stage so to what extent the secondary victims are likely to succeed remains to be seen. However, the Court decided the simplified Personal Injury procedure was the correct way to continue. As a compromise, changes to the written case to be more specific about the “mental symptoms” suffered by the parent and grandparents have been promised by the pursuers’ agents.

 The court recognised that in deciding whether the claim was suitable for personal injury procedure some element of “crystal ball gazing” is involved.  Law is indeed a sometimes mysterious art.

More generally, the decision is an encouraging sign for pursuers of the court supporting the use of PI procedure in cases involving secondary victims and clearly embracing the principle of simplified pleadings. Looking to the future, the dedicated Scottish Personal Injury Court proposed by the Lord Gill review of the Civil Courts in Scotland will surely operate along similar lines.

Simplicity is particularly useful when cases involve very simple things like rolling pins…

 

Ciaran Dougherty

Let the Golfer Beware

Published November 14, 2011 contributory negligence , public liability Leave a Comment

If you are like me and have played golf for a number of years, but yet are not surprised that your drives don’t always sail up the middle of the fairway, but rather take a weird and wonderful path in flight resulting in the final resting place being somewhat adrift from where you intended then the case of Anthony Phee v James Gordon & Niddry Castle Golf Club is a case to note carefully. 

Mr Gordon, an 18 handicap golfer, was playing a round at Niddry Castle Golf Club and had reached the 18th tee.  Just before he drove off he noted Mr Phee and 3 other players walking from the 6th green to the 7th tee down a path on one side of the 18th fairway.  Mr Gordon considered it safe to drive and duly did so. Unfortunately his drive, after initially going straight, veered violently to the left and hit Mr Phee in the eye, causing a significant injury.

Evidence was presented to the court from a number of experts including 2 professional golfers (one for each side).  Both largely agreed that the vast majority of golfers hit most of their shots from the tee within 15 degrees of either side of the desired target line.  It was established that the Pursuer was at a point which was 12 degrees to the left of Mr Gordon at the time he was hit.

The Pursuer’s case was based on the fact that Mr Gordon should not have played his shot from the 18th tee because it was unsafe to do so as Mr Phee was within his range both in distance and angle.  Mr Gordon’s position was that the shot he hit from the 18th tee (known as a duck hook) was a freak shot and, whilst foreseeable, it was not reasonably foreseeable.  The Golf Club was also sued on the basis that the layout of the course, particularly the proximity of the 18th fairway to the path leading from the 6th green to the 7th tee was unsafe and there were no signs up warning any users of the path about the risk of balls being driven from the 18th tee.  In the event, Mr Gordon was found 70% liable;  the Golf Club 30% liable.

This is an interesting case for all golfers.  It sets out quite clear rules to follow when deciding whether or not to take a shot.  It suggests that if anyone is within range of approximately 200 yards and in a 30 degree cone from the tee pointing to the line of target,  then they are at risk of being hit and so a golfer will be acting unsafely if he or she drives off from the tee. 

Interestingly, it appears to suggest that if, like me, some of your drives  can be well outwith that 30 degree cone and can traverse one if not 2 fairways, then if such a shot were to hit and injure another golfer, then no liability would follow!   That is on the basis that at the time when the shot was hit it was reasonable for the golfer to assume it was safe to do so as the way ahead was clear.

It was suggested by the defenders that Mr Phee was hit in the eye as the result of looking up to see where the ball was heading but this version was rejected by the judge who held that Mr Phee had ducked and placed his left hand over his head. 

The judge indicated that, in any event, looking up on hearing a shout of “fore” would not have amounted to contributory negligence. There was a very short lapse of time between the warning and the ball striking the pursuer, Mr Phee was a novice golfer unfamiliar with the course and with a sketchy knowledge of how to react to shouted warnings. His actions should not be “judged too finely”.

Still, this case is a lesson for all golfers – when you hear the shout of “fore” the best course of action is to duck, put your arms over your head and wait for at least 6 seconds, by which time the ball will either have hit you or, hopefully,  have landed elsewhere.

David Armstrong

Credit where credit hire’s due: Scottish update

Published November 4, 2011 damages , road traffic Leave a Comment

In the past year or so there’s been a surge of media coverage in the area of credit hire. The involvement of high profile figures such as footballer Darren Brent has helped make the topic more media friendly. The claim brought on his behalf boiled down to whether credit hire charges totalling £63,000 could be recovered from the third party insurers. With the figures (monetary and celebrity) involved, it’s no surprise the media were on the case.

In Scotland there has traditionally been a dearth of decisions as few cases on this topic proceeded to proof.  However, a flurry of recent judgments now provide a flavour of the Scottish judiciary’s approach to credit hire. In simple terms this is no different to that of the English courts, with Scottish judges seemingly content to follow the approach south of the border.

A judgement of Lord Turnbull in a 2010 Court of Session case outlines the basic approach to credit hire in no-nonsense terms. A claim for around £13,000 of hire charges following damage to a 14 year old car saw an award of a spot-hire rate of £39 per day. The Pursuer recovered £1,950. The hire car provided while the pursuer’s 14 year old Honda was being inspected was not deemed to be a suitable equivalent- the age of a car has to be considered along with the make and use it is put to.

The well established impecuniosity argument was considered by the Sheriff Court in Arbroath. Credit hire rates are only recoverable on a full basis where the Pursuer has no access to other sources of credit or savings. The Pursuer in this case had roughly £20,000 of credit card facility. Unsurprisingly he was not found to be impecunious and could not recover the credit hire market rates – spot hire rates were awarded.

The wordily named Cancellation of Contracts made in a Consumer’s Home or Place of Work etc Regulations 2008 have also been applied in the Scottish credit hire arena in one unreported Sheriff court decision. Credit hire agreements signed after 1 October 2008 in the home or place of work can be deemed unenforceable if the hire agreement does not contain a right to cancellation with a set period within which to do so. This has been a significant development which most credit hire organisations are now wise to, with cancellation notices are commonly included in the initial agreements. We are watching developments in England on this point closely as this is an area likely to develop further.

Earlier this year Lord McEwan dealt with a case where his final remarks make interesting reading:

“It is not for me to speculate or offer any further comment on what must be the obvious consequences in the insurance world over claims like these.“  

No comment is in itself a commentary!

The case turned on the factual basis of damage to the Pursuer’s car and whether as a result he was entitled to credit hire. There was little discussion over rates or what was recoverable. The case was decided in the Pursuer’s favour but there was criticism of the lack of evidence before the Court.

In summary,Scotland is still playing follow-my-leader behind the English courts.  We’re continuing to follow the emerging English case law closely to ensure optimum recovery for our credit hire clients.

Feel free to field your queries to us directly here or on Twitter.

Ciaran Dougherty

Speedy justice – claims timescales in Scotland

Published October 12, 2011 employer's liability , public liability , road traffic , trips and slips 1 Comment

I am recently returned from a few weeks holiday in Morocco. It’s always interesting gauging the reaction of people when I explain what I do for a living. Inevitably the conversation turns to the equivalent profession or industry in the country I’m visiting. Having spent a number of years living in France, it’s fair to say that the impression of the claims and courts system there is one of delay. Cases often take years and years to settle if they end up in court. From what I heard, Morocco is much the same (it adopted the French model of a heavily codified legal system) and lawyers are often accused, in the words of one person I spoke to, of  ”milking the system”.

It made me wonder how quickly we move in Scotland and what causes the delays. At Brodies, virtually all of the cases we handle are dealt with initially under the Voluntary Pre-Action Protocol for Personal Injury claims. In theory this has a 3 month window within which to be investigated and dealt with by an insurer or other signee of the Protocol. In practice that 3 month window can be somewhat elastic: insurers may not respond, further information may be required from a client or communication poses its usual challenges. A majority of claims settle, much to the benefit of clients under the Protocol system and within 3-6 months.

If settlement is not possible, then raising a court action is often the next step. From this stage onwards, timescales are to some extent dictated by dates imposed by the court process. This depends a great deal on which court it is raised in. More complex and higher value cases are likely to be raised in the Court of Session in Edinburghwith a timetable leading towards a proof (trial) date. Current proof dates are around 14 months away. Most cases settle at some point within that timescale and matters have improved somewhat in the last few years with specific procedure for Personal Injury cases.

Cases of lesser value or complexity raised in theSheriff Court can in theory be resolved within as little as 12 weeks or so of lodging. In practice the time taken for an insurer or other body to instruct solicitors, lodge responses and take instructions on the case will generally see cases take a minimum of 6 months.

Based on the entirely unscientific straw polls taken in some of the countries I have visited, I don’t think we do too badly in Scotland with regards to the life expectancy of claims. That’s not to say there’s not room for improvement. Great advances could be made in bringing the paper basedcourt system into the 21st century. Courts are one of the few areas of the law where use of e-mail is only now beginning to benefit users by speeding up processes and allowing direct communication with decision makers.

Here at BClaims we are very keen for the revolution to continue and move into the court room.  At the protocol stage we are actively working with a number of referrer clients on instant data transfer. This allows information to be shared rather than being sent back and forward by e-mail. Our bespoke systems allow users to follow the progress of their claim in real time via our secure client Extranet and communicate with us across the technological spectrum.

And of course, remember to follow us on Twitter and Facebook for our own updates.

Ciaran Dougherty

Clunk click on every trip

Published October 10, 2011 Uncategorized Leave a Comment

In the case of  Murphy v East Ayrshire Council Mr Murphy, who suffered from a number of disabilities, was injured as a result of being thrown from his wheelchair when the minibus in which he was travelling was forced to brake sharply. At the time, he was in the care of Council employees. We have to assume that there was no prospect of a claim based on the actions of the Council’s driver because Mr Murphy pursued his claim on very different grounds.

It was accepted that Mr Murphy was not wearing a seatbelt at the time of the accident.   Mr Murphy’s case was based on the Council having a duty of care to  guard against risks of him not putting his belt on and to prevent him being exposed to risks of which they were, or ought to have been aware.  In particular, they were aware,  from previous trips,  that Mr Murphy would unfasten his seatbelt whilst in transit.  So it was their duty to take reasonably practicable precautions to obviate the risks.

The court in this case held that the law does not impose a duty on a person to protect others from harm which is not caused by his or her wrongful act. Something more, such as an assumption of responsibility is required. In the present case, the court could not identify any basis upon which the Council had assumed a legal responsibility for ensuring that Mr Murphy, a person of full age and capacity, travelled with his seat belt fastened. The fact that Council employees might do what they could to avoid it (such as stopping to refasten the belt if they became aware that Mr Murphy had undone it, or refusing to transport him if he refused to fasten his belt) did not, in the opinion of the court, create a duty in law to supervise him during every journey or, taking the matter a stage further, to intervene against his will to fasten it.

David Armstrong

9/11 Compensation- A view across the Atlantic

Published October 6, 2011 damages , public liability Leave a Comment

I listened to an excellent edition of Crossing Continents on Radio 4 recently. It reported on the many thousands of people who have developed illnesses as a result of exposure to the dust and gas formed by the explosion and collapse of the Twin Towers on September 11, 2001.

Earlier this year President Obama signed legislation setting up a multi billion dollar compensation fund providing compensation and also a health monitoring programme for those affected. Estimates of those numbers involved range from the already 18,000 who have received treatment, to the high hundred thousands.New York lawyers in our own field expect to be dealing with claims arising from the various respiratory diseases, cancers and sadly deaths for at least another 40 years.

Why is a Scottish lawyer blogging about this issue you may be thinking? Yes, the compensation scheme is certainly interesting but for me the events of September 11 have a personal aspect to them too – I breathed in the dust and entered the ash cloud. I was in Lower Manhattan on 11 September 2001.

Summer 2001 saw me working the long university holidays in a bicycle shop in Soho, a mile and a half from World Exchange Square. On the morning of the 11th I was already at work when the news came through about a plane striking the TwinTowers. Initially it seemed like a minor news story- a leisure plane scraping the roof maybe but it quickly became the defining news story of a decade. In retrospect it seems unbelievable, but in the ensuing chaos that followed, I cycled towards Ground Zero and the ash cloud to take pictures. My brother, working as a journalist in New York that year, needed photographs that day and I took on the role of agency photographer. Some are still being used in articles today and the dust is clearly visible. At the time no one was thinking of the effect it might have.

Thankfully for myself, the risk from disease and illness comes from prolonged and intense exposure - those who worked for more than a few days on the Ground Zero site and residents close to the scene. I breathed in some ash for a few hours maximum and lived outside of the now growing area of Lower Manhattanwhere residents are thought to have been at risk even weeks after 9/11.

This deadly legacy seems especially burdensome in that many New Yorkers who lost loved ones may now themselves be suffering years later. While the Compensation scheme will be welcome financial comfort for many, it underlines the difficulty of providing real recompense in the face of death and suffering.

Ciaran Dougherty

Successful toppling toilet claim

Published September 1, 2011 Uncategorized Leave a Comment

The original decision resulted in a woman losing her claim for damages. She was seriously injured when a toilet on which she was standing to open a window toppled over. The Inner House (Scotland’s civil appeal court) have now reversed the original decision and awarded £15,900 in damages (reduced from £31,800 on the basis that she was 50% to blame).

They held that it was not reasonable to expect the pursuer to have to go and find the janitor to help open the window nor could she be expected to simply leave it shut. As they made clear: ““It was wholly foreseeable that a person, such as the reclaimer, would be anxious to be in a position to ventilate the toilet after she had used it.”

The employers had a duty under regulations to carry out a risk assessment and address how the window might be opened, closed or adjusted. Taken together the employers should have discovered the risk of injury if no window pole was provided. Any suggestion that the window could be left shut ignored a further a duty on the employer regarding ventilation of the area.

The Inner House did however agree that the mere fact that it toppled over was not sufficient to establish that the toilet itself was not in efficient working order. It was being “subjected to a use for which it was never designed or intended” and “An abuse by the employee of equipment for the purpose for which it was never designed does not establish that the equipment was not in an efficient state, or not in efficient working order or not in good repair.”

Douglas McGregor

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