Many of the legal reforms affecting personal injury claims in England and Wales have not been enacted in Scotland, but Diana Hall says the picture is changing
The face of personal injury litigation in Scotland is changing. In the absence of the Woolf reforms, procedure in Scotland has evolved differently to that of England & Wales in recent years.
However, the similarities are increasing, and recent Scottish changes aiming to increase openness, expedite dispute resolution and control costs are also features of the Woolf Reforms. However, contrary to their thrifty nature the Scots are seeing a sharp increase in the cost of fatal claims.
In January 2006 the Law Society of Scotland and the Forum of Scottish Claims Managers introduced a voluntary pre-action protocol (PAP) for personal injury claims valued up to £10,000 (excluding disease and clinical negligence actions).
The PAP only applies by mutual agreement but is used in an estimated 75% of cases. Both parties stand to gain through earlier disclosure of information and earlier resolution of the claim.
The personal injury rules for the Court of Session, introduced in 2002, ensure resolution of most cases within 12 months.
They encourage the early exchange of information and narrow the scope of dispute, but impose no regulation on pre-action procedure.
In terms of litigated cases, 2006 saw several changes affecting asbestos actions. Their practical import is particularly significant for those dealing with mesothelioma cases but is likely to influence wider scale future procedural developments.
The first of these is the Compensation Act 2006, in force in Scotland since 26 July 2006. It allows claimants in mesothelioma cases to recover 100% damages from any single employer who negligently exposed the victim to asbestos, even when there are other culpable employers.
This means an employer responsible for only a small percentage of an individual's exposure can be required to meet the whole claim.
The potential cost-per-claim implications are significant. Defenders can subsequently seek a right of relief from unpursued negligent employers, but that requires evidence often held only by the victim or their family.
Scottish rules have not traditionally required disclosure of victims' full statements regarding employment history and liability witnesses. This anomaly between Scottish and English procedure is already being challenged following the Act.
The effect of the Compensation Act is compounded by the Scottish Parliament's reconsideration of damages in fatal cases. These claims give rise to awards for several groups of relatives ineligible for awards in England.
The class entitled to claim for the distress and grief caused by the deceased's suffering and death in terms of Section 1(4) of the Damages (Scotland) Act 1976 has recently been reviewed.
The Family Law (Scotland) Act 2006 applies to deaths after 4th May 2006. Prior to that date claims could be made by spouses, parents, parents-in-law, children, and children-in-law of the deceased.
The new provisions disentitle in-laws, but the class of claimants has been extended to include siblings, grandparents and grandchildren.
The cost-per-claim reduction resulting from removal of the former set is more than is offset by the addition of the latter. The level of awards is as yet uncertain but may be as high as £10,000 for a sibling and £7,500 for a grandchild or grandparent.
Scottish mesothelioma claims have traditionally come from families with a large number of children. On 6 December 2006 the Scottish Parliament's Justice 1 Committee heard evidence of a case where the pursuer has four children and eight grandchildren.
The table below illustrates possible claim value implications, assuming the claimant has two siblings, one living parent, and that each of his children is married.
It is likely that pursuers' solicitors will identify and run a test case to obtain judicial guidance on the level of awards, with the effect of increasing tariffs for other heads of claim.
In mesothelioma actions in particular, following ongoing political pressure the Scottish Parliament has introduced the Rights of Relatives to Damages (Mesothelioma) (Scotland) Bill. It is likely to be passed this spring, and will have retrospective effect from 20 December 2006.
Previously, families became entitled to an award only after death, with the victim forced to choose between seeking compensation during life to the exclusion of their family or leaving the claim to be dealt with posthumously.
The Act allows relatives to be compensated after the victim's death, even where the deceased's claim was settled during their life. The quantum of claims should be unaffected by this development. It is likely that cases will be dealt with by one action whereby relatives can simply stay the original proceedings until after the victim's death.
Taken together, these changes are likely to promote procedural reform but also increased litigation. Negotiations are underway to establish a voluntary Scottish disease PAP, in response to a growing acceptance of the need for earlier disclosure of evidence and resolution of claims. Conversely, increased damages may well lead to forum shopping.
The value of a fatal claim in Scotland is already higher than in England and Wales, and is set to rise. Any claimant who worked or lived, or whose employers have a place of business in Scotland can litigate their claim in north of the border, and would arguably be well advised to do so.
The English decision in Cameron & Ors v network Rail Infrastructure (2006), where it was unsuccessfully argued that the different treatment of claimants, in fatal cases north and south of the border, constituted a breach of the Human Rights Act (1998) is a clear indicator that claimant firms are alive to the potential for richer pickings north of the border. IT
Diana Hall is an associate at Simpson & Marwick