SCotland Guide INSURANCE SERVICES

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1 SCotland Guide Insurance GROUP INSURANCE SERVICES

2 Welcome to this the fifth edition of the Scotland Guide. Introduction Its purpose is to provide an introduction to Scottish procedural law for the benefit of claims handlers, who from time to time are called upon to deal with Scottish cases. The guide aims to provide a concise overview of the Scottish legal system, and to provide some answers to such questions as: How much will this cost us?, How long will it take to process this claim through the courts?, Can I instruct my own expert?, Can I see medical records/gp notes?, and How much information can I have and when can I have it to enable me to reserve as accurately as possible as soon as possible?. The guide has been prepared by DLA Piper Insurance Services Scotland, which is based in Edinburgh. The Voluntary Pre- Action Protocols Personal Injury A Voluntary Pre-Action Protocol came into effect in Scotland on 1 January Unlike in England, there is no statutory basis for the Protocol and therefore it can only be entered into voluntarily, by mutual agreement on an individual case-by-case basis. The main features of the Protocol can be summarised as follows: Applies to claims including a personal injury but excluding clinical negligence and disease unless parties agree to adopt the Protocol. Designed for claims valued at up to 10,000 but can be applied to higher value cases by mutual agreement. The Letter of Claim a detailed letter containing sufficient information to enable the insurer to investigate and put a broad valuation on the risk. It should contain: a clear summary of the facts allegations of negligence breaches of common law or statutory duty an indication of any injuries and financial losses details of any place of treatment Insurers should respond within 21 days, advising whether it is agreed that the case is suitable for the Voluntary Protocol. Insurers have a maximum of three months thereafter to investigate the merits of the claim and state whether liability is admitted. Pursuers must submit a Statement of Valuation of Claim with supporting documents if liability is admitted and must usually also instruct medical reports no later than five weeks thereafter. Cheques must pass within five weeks of any agreed settlement or receipt of a signed discharge where necessary. 02 Scotland Group Insurance Group

3 Comment The Protocol has been kept deliberately simple to promote its ease of use and acceptability. Without any change in the court rules, however, it is difficult to imagine that failure to follow the Protocol will have any adverse costs (costs are known as expenses in Scotland) ramifications in subsequent litigation. Nevertheless, a downward turn in litigation volumes is a clearly discernible effect of the Protocol since its introduction. Professional risks Following the introduction of the Personal Injury Protocol, a Voluntary Protocol for professional risk claims was introduced with effect from 1 July The Protocol is a welcome development given the tradition in the Scottish jurisdiction, even in professional negligence cases, of exchanging little information before litigation and ambush by the claimant when the case is in court. The Protocol draws heavily on its counterpart in England and much of the wording is identical. It is important to bear in mind that this Protocol is also voluntary with no statutory force. Three highlights are: A requirement on both sides to exchange expert evidence. A transparent fixed costs regime. An ability to rely on Protocol correspondence when arguing questions of costs in court. This is in an environment where the Scottish courts are developing a willingness to seriously consider pre-action behaviour when deciding on costs awards. They will now penalise claimants for unreasonable pre-action behaviour viz David Morrison v British Broadcasting Corporation 2007 Rep. L.R.2. There are also some disappointments: The Protocol is targeted at claims up to 20,000 albeit with the possibility of higher value claims being treated as Protocol claims by agreement. We suspect that the fee scale, however, will not encourage claimants to use a Protocol on higher value claims or indeed in complex claims that fall within the value limit. The requirement to consider ADR is weakened by the lack of any judicial sanction if ADR is unreasonably refused. However, anything which encourages early exchange of information and reasonable pre-action behaviour with an emphasis on avoiding litigation is a welcome development for professionals facing claims and their insurers. Industrial Disease A voluntary pre-action protocol for industrial disease claims also came into effect on 1 June The main features of the protocol are: It covers any disease, physical or psychological, any disorder, ailment, affliction, complaint, malady or derangement, other than physical or psychological injury solely caused by an accident or other similar singular event It is not restricted to disease claims arising from an individual s place of work It sets out a timetable and procedure to be followed, which in general terms is along the lines of the other protocols. The Scottish Court System There are two levels of civil court in Scotland. Jurisdiction is divided between the Court of Session, based in Edinburgh, and the Sheriff Courts, in 49 locations throughout Scotland. A claim with a value of 5,000 (or less) must be raised (issued) in a Sheriff Court, although there is no upper limit to the value of claims which may be raised in a Sheriff Court. It is more common, however, for claims of significant value to be raised in the Court of Session. The two levels of court also have different forms of procedure, governed by different rules of court. In particular, a personal injury action in the Court of Session has its own rules which were introduced in April The majority of injury claims are raised as ordinary actions in the Sheriff Court and personal injury actions in the Court of Session.

4 Additionally, there is commercial cause procedure in both the Sheriff Court and Court of Session, an expedited route for commercial claims which involves greater case management and control by the court. The Court of Session Personal Injury The personal injury rules came into force on 1 April 2003 and apply to all personal injury actions in the Court of Session. Key features can be summarised as follows: An automatic timetable that specifies dates by which certain key actions must be taken. Setting a date for a proof diet (a trial window) one year in advance. Simplified written pleadings. An exchange of schedules and counter-schedules with supporting documents. A pre-trial meeting. The key differences between the rules governing an action for personal injury in the Court of Session and the English Civil Procedure Rules (CPR) are detailed below. Disclosure In Scotland, there is no obligatory disclosure. Parties seeking documents during the course of proceedings must apply to the court specifying the document or category of documents that they require, eg GP and hospital records, if these are not disclosed voluntarily. The pursuer is entitled to seek an automatic specification of documents (order for disclosure) at the outset of the proceedings. The period for enforcement is time-limited, however, so defenders can be required to comply within a relatively short period after service of the summons and specification. The Court of Session rules dictate that parties ought to provide medical reports with their Statement of Valuation of Claim. There are, however no ramifications for failing to do so and therefore parties rarely disclose their evidence at that stage. Pre-accident medical records are not usually made available although we have succeeded in recovering these where the pursuer alleges continuing loss in line with Dunn v British Coal Corporation, Court of Appeal, 15 February [1993] I.C.R In Hendry v Alexander Taylor & Sons and NIG Insurance 2008 Rep. L.R.38, Court of Session 9 November 2007, DLA Piper Insurance Services Scotland secured a decision which wins the right to recover pre-accident medical records in Scotland. This is the first such recorded authority north of the border. Comment Disclosure in Scotland remains a cumbersome, timeconsuming and bureaucratic process. Our practice is to attend to it proactively to put our clients in the strongest position possible. Witnesses Witness statements (or precognitions as they are known in Scotland) remain privileged throughout an action and are not normally disclosed or exchanged. The only requirement is to identify the witnesses to be called up to eight weeks prior to proof (trial) by lodging (serving) a List of Witnesses, or later, by consent or with leave of the court. Experts Productions (evidence), including expert reports, can be lodged with the court up to eight weeks prior to trial, or later by consent of the parties or with leave of the court. Parties can also choose which expert reports they wish to rely upon and do not require to disclose any report unless they wish to put it before the court as evidence. Even if a report is not lodged (served), an expert can give oral evidence that includes the content of a report that has not been disclosed, so long as the expert is listed as a witness. In practice, this means that reports and witnesses are often introduced up until the morning of the trial. There are no joint statements by experts in Scotland. We can offer external access to our comprehensive Medical Expert Database Service (MEDS) which enables quick and easy validation of the pursuer s 04 Scotland Group Insurance Group

5 expert, or identification of an independent specialist for your own report. We can also provide tailored advice on the selection of experts for individual cases. Pleadings In England, the parties pleadings all remain as separate documents particulars of claim, defence, part 18 requests and replies. In Scotland, following the adjustment period (an automatic period for amendment without leave), parties pleadings are incorporated into one document called the Record. Thereafter parties can amend their pleadings with leave of the court. The Court of Session rules for personal injury cases sought to avoid the need for detailed pleadings in such actions, but in practice comprehensive pleadings continue to be required. Offers to settle In Scotland, an offer to settle may be made by way of tender (a part 36 offer equivalent, which has adverse costs consequences for a party failing to beat it). Unlike in England, a tender cannot be made until proceedings have been raised (issued). There has never been any requirement to make an actual payment into court, as is now the position in England. In England the claimant has 21 days to respond to a part 36 offer but, in Scotland, the pursuer is simply allowed a reasonable period of time for acceptance without express implications. A tender can be withdrawn at any time prior to acceptance without the leave of the court. Trials and Hearings in Scotland: Proofs, Proofs before Answer and Debates A civil trial in Scotland is known as a Proof. A Proof is a hearing on facts and evidence only. A Proof Before Answer is similar to a Proof in that there is a hearing on the facts and evidence of a case. The main difference is that parties have the opportunity after evidence is heard to engage in legal debate about the relevancy of their opponent s pleaded case. A Debate (also known as a Procedure Roll hearing in the Court of Session) is a hearing on legal arguments only and no facts and evidence are heard at the hearing. At Sheriff Court level the decision as to whether to fix a Proof, Proof Before Answer or Debate is made by the Sheriff once he has heard the parties views on further procedure at the Options Hearing (Case Management Conference equivalent). In the Court of Session, the matter will only come before the Court if parties cannot agree. Insurers and their insureds accordingly need to consider whether they wish to challenge the legal basis of a case or whether the dispute is solely one of fact and evidence. Jury Trial In a Court of Session personal injury action, the pursuer has an automatic right to jury trial, although that is not always exercised. If the pursuer opts for jury trial, it can be resisted but only on special cause. The most common ground for objection is that there are complex issues involved rendering the case unsuitable for consideration by a jury. Given that juries at trial are not experienced in quantifying damages, there is an inherent risk that a jury may award significantly higher damages than a judge. Current case law establishes that a jury award will not be overturned on appeal unless it is approximately 100 percent more than a judge at first instance would reasonably have awarded. Unsurprisingly there is an increasing trend in pursuers seeking jury trial given the generous awards that are available. It is our departmental policy, subject to express authority from the client in a given case, always to object even if the chances of success are low, given the risk of a jury awarding significantly more than a judge would. A recent case gives grounds for cautious optimism that Scottish judges may be more willing to hear arguments that some issues in personal injury cases are too complex for jurors. In the recent case of Slessor v Vetco Gray UK Limited 2007 S.L.T. 400, the judge upheld the defender s claim that the value was too complex to be determined by a jury as the calculation of the pursuer s losses would involve a large number of complicated computations in terms of the Ogden Tables.

6 Overview of a court of session personal injury action Summons signetted (issued) overview of a court of session non-personal injury action Summons signetted (issued) Summons served often with automatic order for disclosure Summons served Summons calls Summons calls Appearance entered on rolls (see Scottish Glossary) No appearance (of counsel s name on rolls within three days) Appearance entered on rolls (see Scottish Glossary) No appearance (of counsel s name on rolls within three days) Defences lodged within seven days Decree in absence (judgment in default) Defences lodged within seven days Decree in absence (judgment in default) Keeper of the rolls fixes timetable: A proof diet (trial window) 28 days to bring third party into action 28 days for pursuer to recover documents by court order and commission Eight weeks to adjust the pleadings Eight weeks for pursuer to lodge valuation of the claim together with supporting documentation Pursuer to lodge Record (document incorporating pleadings of both parties) Pursuer enrols motion to ask court to allow a proof or jury trial (10 weeks) 16 weeks (from lodging defences) for defender to lodge counter valuation of claim plus documentation Recall of decree the setting aside of judgment Note Failure to comply with the rules will see the case put out By Order, a procedure whereby the parties are called to court to explain the reasons behind the failure to comply. The court has the power to dismiss the action or the defence, or to award expenses (ie costs) against the party in breach. It should be noted that the timetable can be sisted (stayed)/ varied on special cause shown to the judge. Open Record/Adjustment Period commences 14 days after defences lodged. Procedure of adjustment to the Record by both parties to produce their final detailed cases Closed Record Record can only be altered with leave of court By order Adjustment Roll Parties agree further procedure or a Procedure Roll is fixed by the court Proof Trial Defender absolved (case dismissed) Recall of decree - the setting aside of judgment Procedure Roll debate further procedure decided Proof Before Answer Jury Trial Verdict Eight weeks before proof, parties to lodge list of witnesses together with any evidence Four weeks before proof, a pre-proof meeting Three weeks before proof pursuer to lodge a minute of the pre-trial meeting Decree for pursuer judgment Proof Trial Defender absolved (case dismissed) Decree for pursuer judgment Proof Before Answer Jury Trial Verdict 06 Scotland Group Insurance Group

7 The Sheriff Court The Sheriff Court operates Small Claims and Summary Cause procedures for low value claims. The Small Claims procedure governs cases valued below 3,000 and the Summary Cause procedure, for cases valued at or between 3,000 and 5,000. Under new rules, all personal injury actions with a value of less than 5,000 (even if less than 3,000) will be governed by the Summary Cause procedure. We consider that the majority of personal injury actions in the Sheriff Court will be raised (issued) under the Ordinary procedure, where cases must have a value of more than 5,000. There is no upper limit on the value of an ordinary action in the Sheriff Court. A new ordinary procedure for personal injury actions came into force on 2 November Under the new procedure an Initial Writ (Summons) is served on the Defender (Defendant), who has a period of 21 days to lodge (serve) a Notice of Intention to Defend the claim. A further 14 days is allowed thereafter for Defences. The court then issues a timetable fixing a proof 9 months ahead and specifying a number of other key dates by which certain key actions must be taken (e.g the lodging of statements of valuation of claim and the lodging of witness lists and productions, etc). Non-personal injury actions are governed by a different ordinary procedure. Solicitors have rights of audience in the Sheriff Court and regularly conduct their own proofs (trials). This is in contrast to England where trials tend to be conducted by Counsel. We have a number of Scottish solicitors who are also experienced advocates in the Sheriff Court and can defend cases to proof (trial) without recourse to Counsel. We also offer solicitor advocacy services whereby we can appear in cases in the highest civil court, the Court of Session, again without recourse to Counsel. Overview of a Sheriff Court personal injury Action Writ warranted (issued) Service of Writ Notice of Intention to Defend (NID) lodged within 21 days notice period Defences lodged within 14 days Sheriff Clerk allocated a diet of proof and issues timetable 8 weeks after defences: Adjustment ends and pursuer lodges statement of valuation of claim 10 weeks after defences: Pursuer loosen record 12 weeks after defences: Defender loosen statement of valuation of claim 8 weeks before proof: Parties loose productions/witness list 4 weeks before proof: Pre-proof Conference Proof

8 Overview of a Sheriff Court Ordinary Action non personal injury Writ warranted (issued) Service of Writ Notice of Intention to Defend (NID) lodged within 21 days notice period Defences lodged within 14 days from expiry of notice period Adjustment Period Approximately an eight-week period of adjustment to pleadings without leave of court. Record lodged no later than two days prior to Options Hearing time bar (limitation) The limitation period in Scotland for personal injury claims is three years, as in England. For non-injury claims, the limitation period is five years, to be contrasted with six years in England. As in England, there is scope for a court to extend the three-year limitation period in personal injury claims (Section 19A Prescription and Limitation (Scotland) Act 1973). As a rule of thumb, Scottish courts have been less willing to extend primary limitation in individual cases than their English counterparts. Expenses (costs) As in England, costs (or in Scotland, expenses) are almost without exception recoverable by the successful party. The method of assessment of these costs, however, is different. Proof Absolved (Dismissed) Decree Options Hearing Procedural hearing before a Sheriff to determine further procedure Proof Before Answer Absolved (Dismissed) Debate Dismissal Continuation with two weeks to adjust pleadings weeks only and only allowed once Additional Procedure on grounds of complexity, the parties are allowed a further eight weeks to investigate and adjust their written pleadings Pre-litigation expenses for claims intimated prior to 1 January 2006 Where claims have been intimated prior to 1 January 2006 and the parties do not agree to deal with the matter under the Protocol, there is no set scale for fees payable by compensators to the pursuer s solicitors. In most cases, parties agree to pay fees on what was formerly Chapter 10 of the Table of Fees recommended by the Law Society of Scotland, as follows: Outlays (disbursements) and VAT (unless the pursuer is VAT registered) on the fees and disbursements are payable in addition. Negotiation and Completion Fee Settlements up to 2,500 25% On the excess over 2,500 up to 5,000 15% On the excess over 5,000 up to 10, % On the excess over 10,000 up to 20,000 5% On the excess over 20, % 08 Scotland Group Insurance Group

9 Pre-litigation expenses for claims negotiated under the Pre-Action Protocol The fees for claims dealt with entirely under the Protocol comprise the following elements (figures valid from 1 July 2009): 1 Instruction Fee On settlement up to and including 1, On settlement over 1, Completion Fee (on total amount of settlement with sole exception of cost repairs to vehicle and credit hire costs) Settlements up to 2,500 25% On the excess over 2,500 up to 5,000 15% On the excess over 5,000 up to 10, % On the excess over 10,000 up to 20,000 5% On the excess over 20, % In addition, VAT (on both the instruction and completion fee elements) and outlays are payable. Post-litigation Judicial Expenses Expenses generally follow success. The successful party prepares an Account of Judicial Expenses, either when an action is settled during the course of litigation or when a court makes an award of expenses. The Judicial Account of Expenses is prepared on the basis of fixed Tables of Fees, which regulate the expenses the successful party can claim. These are updated annually by statute. The Tables of Fees allow the successful party to recover their expenses, either on the basis of fixed block fees for particular types of work or by charging for the time spent on the case, by reference to fixed rates. The block fee is most commonly used. The paying party cannot challenge the choice of the successful party as to the basis for calculating their expenses. Quite often, the successful party will send their papers to a law accountant (costs draftsman) to prepare their judicial account of expenses. The draftsman s fee cannot be included in the account of expenses but there is a scale fee for preparing the bill. There are different Tables of Fees for the Court of Session and the Sheriff Court although the principles are the same. Additionally, it is open to the successful party to request that the court or auditor uplift their expenses by a percentage increase, based on what is fair and reasonable. Factors taken into account include: the complexity of the litigation; skill and specialised knowledge; time spent; number and importance of documents; the place and circumstances; the value involved; and the importance to the client. There are no hard and fast rules as to what is fair and reasonable. It is our practice to forcefully negotiate expenses within the constraints of economics. Block Fees The tables provide that the successful party is entitled to a specific amount for each step of the proceedings.

10 Court of Session Examples of solicitor block fees in the Court of Session for defended personal injuries actions from 27 April 2009: Work before action commences (Pre-Litigation fees) Instruction fee to cover all work until the lodging of Defences Record fee: all work in connection with adjustment and closing of the Record Preparing for procedure Roll Hearing Attendance at Procedure Roll Hearing (per quarter hour) Lodging a Specification of Documents Miscellaneous motions opposed Incidental procedure (fixing diet, borrowing productions etc) Amendment of Closed Record Settlement by tender Extra-judicial settlement Hearing Limitation Fee (work done to reduce and define the issues for the proof) Final procedure when action settled The above is but a representative sample of the kind of block fees solicitors can claim in a typical Court of Session case, with VAT recoverable in addition unless the successful party is VAT registered. Sheriff Court In the Sheriff Court, there are different Tables of Fees to take account of the different nature of the work and procedure, because, in the majority of cases, solicitors conduct these cases themselves without the assistance of counsel. Examples of block fees in the Sheriff Court for defended personal injury actions from 2 November 2009 are as follows: Work before action commences Instruction fee Precognitions (per sheet) Lodging an Inventory of Productions Adjustment fee for work up to closing the Record Preparing valuation of Claims Preparing for pre-proof confenal Amendment of Record excluding perusal of answers or court appearance Opposed motion Hearing limitation fee Procedure preliminary to proof Conduct of proof Settlement by tender Extra-judicial settlement Final procedure VAT is also recoverable on fees unless the successful party is VAT registered. Solicitors are also entitled to add, on top of their expenses, a process fee of 10 percent of the total fee, to cover all consultations between solicitor and client during the course of the action. 10 Scotland Group Insurance Group

11 Charges for time, drawing of papers, correspondence etc As an alternative to block fees, solicitors can charge by reference to a table of detailed charges. In practice, this is seldom encountered. Examples of such charges (from 27 April 2009) are as follows: Court of Sheriff Court session Framing (drafting) documents Attendance at court Time charged in preparation for attendance at meetings, perusal of documents and in all other work Correspondence (per sheet) (per quarter hour) (per quarter hour) (per page of 125 words) (per sheet) Telephone calls short Telephone calls lengthy Outlays (Disbursements) (per quarter hour) (per quarter hour) (per quarter hour) (per page of 125 words) In addition to VAT, the judicial account of expenses will include outlays. These include court dues (fees), counsel s fees, expert reports and witness expenses. Court dues include fees for entering appearance, the fixing of the proof or debate and any motions (applications) made. Outlays can increase the account of expenses considerably. Counsel s Fees In the Court of Session, counsel s fees are almost always recoverable: as part of any award of expenses or upon settlement. In the Sheriff Court, the Court must first sanction the employment of counsel. The Sheriff will do so in cases that are considered difficult or complex or where the case is of particular importance to the client. Experts The successful party must also seek to have their expert witnesses certified by the court (ie the court confirms that their expertise was necessary) before they are entitled to recover their expenses. Certification is almost always a mere formality. It is exceptionally rare for the necessity of an expert to be questioned. Negotiation of Expenses On receipt of the account of expenses (bill of costs), the unsuccessful party will consider it and negotiate settlement of the account. Because of the fixed fee regime, there is little scope for substantial discounting of costs claimed in pre-litigation or litigated cases unless they are calculated wrongly. However, if the account cannot be agreed, it will be submitted to the court auditor for taxation. At taxation, the auditor has discretion to increase or reduce the account. In practice the auditor s decision is final. What Does All This Mean in Practice? The settlement figure has no bearing on expenses in Scotland. The table below is based on our experience of expenses in litigated cases over the years. For obvious reasons, this should be regarded as a guideline only. Court Court of Session Stage of Proceedings at Settlement date After exchanging valuations Pursuer s approximate expenses 8,000 Court of Session At pre-trial meeting 15,000 Court of Session At doors of court 30,000 Sheriff Court Pre-proof 8,000

12 Summary of Litigation in Scotland Participation in the Scottish Pre-Action Protocols is by mutual agreement only. There are procedural differences between the Court of Session and Sheriff Court. An automatic timetable is now issued at the outset of personal injury cases in the Court of Session and in the Sheriff Court. There is no true proactive case management of cases outside the commercial procedure. Parties can disclose evidence until shortly prior to proof (trial) and therefore early settlement can often only be achieved by conducting a proactive defence. This does, however, also allow astute defenders the opportunity to enter into tactical negotiations prior to exchanging evidence. Pursuers costs are generally significantly lower than in comparable cases in England and Wales. Civil Court review Lord Gill published his report of the Scottish Civil Courts Review on 30 September The report proposes radical changes to the country s civil justice system. The main changes are that: all actions below 150,000 in value should be taken in the sheriff court; a new specialist personal injury sheriff court should be created in Edinburgh with an all-scotland jurisdiction (including the availability of jury trials); and a new class of judicial officer, called a district judge, should be introduced to hear low-value civil claims. Lord Gill has also recommended that the issue of expenses (costs) be further examined by a Working Group established for that purpose. The Scottish Government has welcomed the proposals and it is now up to the Minister for Justice to decide how to take forward the recommendations. It is thought unlikely that legislation would be brought forward to implement Lord Gill s recommendations before 2011/2012. The Future of litigation in Scotland Pre-Action Protocols The personal injury Pre-Action Protocol was originally intended as a two-year pilot and it is likely that the terms of the Protocol will be refined, along with the fee scale. We believe however that both the personal injury and professional risk Protocols require to be given the force of law in order to enable more cost-effective and speedy resolution of claims. 12 Scotland Group Insurance Group

13 Insurance Information Guides In addition to Scotland, the Insurance Services Group publish as a number of other dedicated guides including: Asbestos Disease and Illness Claims Protocol Industrial Deafness Motor Claims Quantum Vibration White Finger Work Related Upper Limb Disorder We also produce a guide to MEDS (Medical Experts Database Service), a unique database offering from DLA Piper aimed at the defendant personal injury handler. If you require further copies of this guide, or if you consider we can help you in any other way, please contact: Alan Jacobs Edinburgh T +44 (0) M +44 (0) Gail Whealing Edinburgh T +44 (0) M +44 (0) Duncan Mawby Edinburgh T +44 (0) M +44 (0) For the latest news within this sector, please visit the Scotland section on DLA Piper u k l l p 1 and DLA Piper s c o t l a n d l l p 2 are part of DLA Piper, an international legal practice, the members of which are separate and distinct legal entities. For further information please refer to A list of offices can be found at Regulated by (1) the Solicitors Regulation Authority, (2) the Law Society of Scotland. UK switchboard +44 (0) Copyright 2011 DLA Piper. All rights reserved. FEB /KP

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