Legal Update: Courts, Claims and Costs. Andrew Gilmour Partner BLM 10th December 2014

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1 Legal Update: Courts, Claims and Costs Andrew Gilmour Partner BLM 10th December 2014

2 Legal Update 1. Increasing Value of Fatal Claims in Scotland 2. The Court Reform Act 3. Costs Reforms 4. Insurance Bill Future Reforms on the Horizon

3 Increasing Value of Fatal Claims in Scotland Damages (Scotland) Act 1976, now 2011 Loss of society now at Section 4(3)(b) Loss of support now at Section 4(3)(a) Applies to all fatal claims Special provisions for Mesothelioma Estate claims: Solatium, Services, Loss of Earnings, Funeral Expenses

Section 4(3)(a) Applies to all fatal claims Special provisions for

4 Who else can claim? Deceased s Immediate Family : Spouse, civil partner or living with the deceased as if married Parent, child or person who accepted the deceased as a child or was accepted by the deceased as a child Brother, sister or brought up in same household and accepted as a child of the family Grandparent, grandchild or accepted as such

married Parent, child or person who accepted the deceased as a child or was accepted

5 Distress, grief and loss of society Section 4(1) Immediate family are entitled damages for: Distress and anxiety endured by the relative in contemplation of the suffering of the deceased before death Grief and sorrow of the relative caused by the deceased s death The loss of such non patrimonial benefit as the relative might have been expected to derive from the deceased s society and guidance if he/she had not died

sorrow of the relative caused by the deceased s death The loss of such non patrimonial benefit as the

6 Older Awards 2001 Strang v Le Brusq (Jury) Deceased age 21 years. Parents awarded 30k each 2003 Shaher v British Aerospace (Judge) Appeal court reduced award to parents of deceased son from 35k to 20k Gillies v Lynch (Jury) Deceased age 24 years. Mother awarded 80k

Appeal court reduced award to parents of deceased son from 35k to

7 Nimrod Jury Awards Young v Ministry of Defence 2010 Deceased 21 years male. Mother awarded loss of society 90k and adult sister awarded 60k. Dicketts v Ministry of Defence 2010 Deceased age 27 years. Mother and father awarded 98k each including services of 2k-sum sued for Swarbrick v Ministry of Defence 2010 Mother awarded 100,000 sum sued for

Dicketts v Ministry of Defence 2010 Deceased age 27 years.

8 Jury Awards 2011 Hamilton v Ferguson Transport (Spean Bridge) Ltd 2011 Mother age 50 years killed in RTA Husband age 67 years awarded 80k Daughter age 17 years awarded 120k Note hierarchy of awards Thomson v Dennis Thomson Builders Ltd Pursuer was father of deceased who died in course of employment sole director and 100% shareholder Deceased age 26 years Father awarded 90k

hierarchy of awards Thomson v Dennis Thomson Builders Ltd Pursuer was father of deceased who

9 Judicial Awards 2011 Bellingham v Todd 2011 Widow - 50k Young children - 25k each/adult son - 15k Parents - 15k each Adult brother - 10k Wolff & Ors v Moulds & Ors 2011 Widow - 50k Adult children - 15k and 18k Grandchild - 6,500

each Adult brother - 10k Wolff & Ors v Moulds & Ors 2011

10 Appeals Hamilton / Thomson Appeals Original jury awards excessive Disparity in awards by judges and juries unsatisfactory Absence of direction to jury unsatisfactory - now refer jury to spectrum of possible awards Judge Awards in Bellingham and Wolff markedly undervalue loss of society claims

unsatisfactory Absence of direction to jury unsatisfactory - now refer

11 Increasing Fatal Damages in Scotland Kelly v Upper Clyde Shipbuilders Jury, , Mesothelioma. Widow 40K; Child 25K; Grandchildren 1.5K, 4K, 8K; Sibling 8K McGee & Others v RJK Building Services Judge, PL. Widow 80K. Daughters 35K; Son 27.5K; Grandson (17) 25K; Granddaughter (9) 20K; Granddaughters (13 and 10) 12K 11

5K, 4K, 8K; Sibling 8K McGee & Others v RJK Building Services Judge, 18.1.13. PL.

12 Increasing Fatal Damages in Scotland Ryder v Highland Council Judge, RTA. Mother 40,000 Currie v Esure Services Limited Judge, RTA. Father & Mother 42K each; Sibling 22,500 Scott v Parkes Jury, May RTA. Mother 86,000 12

Mother 40,000 Currie v Esure Services Limited Judge, 21.2.14.

13 Increasing Fatal Damages in Scotland Gallagher & Others v SC Cheadle Hulme & Others Judge, Mesothelioma. Widow 80K; Children (adult) 35K each; Grandson / Granddaughter 25K; Granddaughter 12K Grandsons 2,500 each Stuart or Ward v Reid & NIG Judge, RTA. Grandchildren (5) 18K; (3) 16K; Grandson (born 5 months after) 14,000 13

Widow 80K; Children (adult) 35K each; Grandson / Granddaughter 25K; Granddaughter 12K

14 Increasing Fatal Damages in Scotland McCarn & Ors v Secretary of State Judge, Mesothelioma. Each adult child 35,000 Young v McVean Judge, RTA. Mother 80,000 14

15 Practical conclusions General Increase in Section 4(3) Awards all levels Erosion of Hierarchy of Awards? Factors used to Increase Awards more important Continued increases from Judges Expected Possible levelling of awards Careful Reserving

Factors used to Increase Awards more important Continued

16 Loss of support s 4(3)(b) Claimants - Immediate family plus those supported: Ascendant/descendant of deceased; Uncle and aunt Child or issue of deceased s brother/sister, uncle/aunt Spouse or civil partner Section 7 presumed to come from 75% of deceased s net annual income Exception for the purpose of avoiding a manifestly and materially unfair result s 7(2) No challenge as yet to 25% deduction Income of remaining spouse ignored Must be a truly exceptional case to depart from 75%

of deceased s net annual income Exception for the purpose of avoiding a manifestly and materially unfair result s 7(2)

17 The Court Reform (Scotland) Act 2014 The Review of the Civil Justice System Scottish Government - appointment of Lord Gill The Gill Review 2007 to 2009 The Gill Report September 2009: Report of the Scottish Civil Courts Review Consultation Paper on the Review Scottish Government Response Parliamentary Progress and Passing

Gill Report September 2009: Report of the Scottish Civil Courts Review

18 The Reforms Privative Limit of the Court of Session up to 100,000 The New Sheriff Court Focus on Sheriff Court below 100,000 New Personal Injury Court in Edinburgh Civil Jury Trials Sanction for Counsel Summary Sheriffs All-Scotland Sheriff Appeal Court

100,000 New Personal Injury Court in Edinburgh Civil Jury

19 Scottish Civil Justice Council Headed by the Lord President, Lord Gill. Creation and purpose Structure Significant role in implementation of the Court Reform (Scotland) Act 2014

20 The Reform Timetable Early 2015: Recruitment begins of new Summary Sheriffs : New Personal Injury Court starting operations New Sheriff Appeal Court starting operations

2015-16: New Personal Injury Court starting

21 The Effect of the Reforms? Various Opinions have been expressed. Gridlock in the Sheriff Court? Panicking Pursuers? An end to the Bar? Shrinking of Court of Session? Parties receiving reduced Costs and Increased Proportionality? Rush before the Reforms? Sheriff Court Juries awarding high sums in low cases? Increased power to Sheriffs? Increased access to justice? Quicker Resolution? A Re-Badged Court of Session in Edinburgh?

22 Costs Reforms Review of Expenses and Funding of Civil Litigation In Scotland Sheriff Principal Taylor Consultation Paper 2011 and Responses 2012 Public Meetings 2012 Report 2013 Scottish Government Response 2014 Primary Legislation Awaited...Bill in 2015?

23 Costs Reforms Summary: Post-Jackson Reform Costs-Budgeting QOWCS Referral Fees Damages Based Agreements Pre-Action Protocols

24 Insurance Bill 2014 Background Law Commissions Joint Report / Draft Legislation UK Government Objectives and Aims 3 Key areas: Pre-contract duty of disclosure and the effect of representations Effect of Warranties contained in the policy An insurer s remedies for fraudulent claims

25 Insurance Bill 2014 Legislative Progress Possible Additions to the Bill Royal Assent likely March/April 2015 In force October 2016

26 Future Reforms on the Horizon Mandatory Pre-Action Protocols Damages (Scotland) Bill Limitation to increase from 3 years to 5 years Fatal Accident Inquiry Reform Recovery of NHS Charges in Asbestos Cases in Scotland? Outcome of Enterprise Act?

27 Q&A

Negligence and Damages Bill

Negligence and Damages Bill EXPLANATORY NOTES Explanatory notes to the Bill, prepared by Andy McDonald, are published separately as Bill 76 EN. Bill 76 6/1 CONTENTS PART 1 PYSCHIATRIC INJURY 1 Close tie (duty of care) 2 Close tie