Claims and Covid-19
These are unprecedented times for our civil courts and for those who seek to litigate and defend personal injury claims in Scotland in particular. For the past two months, only litigation identified as urgent has been progressed in the Sheriff Courts, the All Scotland Personal Injury Sheriff Court and the Court of Session. Consequently, unless a claim was about to time-bar, or a Proof was imminent, Scotland's civil courts were effectively closed.
However, significant steps are now being taken to address the backlog: timetables are beginning to be issued in the All Scotland Personal Injury Court, and in the Court of Session and elsewhere virtual hearings for urgent matters are being held remotely. It is likely to take some time before the civil courts return to normal, and all work is processed. Implementation of new legislation has also been affected. One way costs shifting (QOCS) was due to be implemented in Scotland this Summer but has been delayed because of the Covid 19 pandemic. Claimant solicitors have no doubt been stock-piling cases in anticipation, particularly those where there is liability dispute, in order to benefit from QOCS protection. Combined with the civil courts' inability to process the majority of civil claims, we anticipate a significant increase in Scottish personal injury litigation in the next 12 to 18 months.
Our Scottish team has been working from home since lock down began, with full access to DWF technology, systems and processes. We are here to help in any way we can. Please get in touch if you need any assistance. Full contact details for the team are below.
Reaching our clients
DWF's Virtual Cat PI and Occupational Health Conference May 2020
Director Lynne Macfarlane presented on Scottish Claims as part of the DWF Virtual Personal Injury Conference, held over 4 days from 18th to 21nd May, where over 35 DWF experts from the UK and beyond presented on a huge variety of topics to over 4000 clients through the course of the week, all from the comfort of their homes.
The Scottish session proved especially popular with a high level of interest and many questions. You can view Lynne's session here for top tips on Scottish claims.
Given the clear client interest, we are hoping to host a Scottish Virtual Insurance Conference in the near future – watch this space.
Counter Fraud Scotland
The team continues to report significant savings for clients through their innovative use of counter fraud strategies.
- Claim intimated 14 months post-accident. No offers pre litigation due to farmed / LSI concerns.
- The Pursuer raised an action seeking £5000 for alleged injury to the neck and lower back caused by an accident involving the Defender's insured.
- The insured's vehicle collided with the rear offside of the Pursuer's vehicle, as the insured attempted to move lanes due to a merging of lanes up ahead.
- The Pursuer did not seek any medical treatment following the accident.
- The impact was at a low speed – the insured stated that he was travelling between 5-10 mph and felt just a clip between the vehicles; furthermore his vehicle required no repairs.
- A robust defence was advanced highlighting the concerns. We then put forward an offer of abandonment which was accepted by the Pursuer.
- Client savings £13,050
- LSI/Phantom Passenger
- The Pursuer raised an action seeking £5000 in respect of alleged injuries to his neck, left shoulder, left chest wall and lower back following a RTA involving the Defender's insured.
- A linked action was also raised by another claimant who claimed to be a passenger in the Pursuer's vehicle.
- The accident occurred at low speed
- An independent engineering report supported the low speed, on the basis that the damage to the vehicles indicated a glancing side impact, which would be inefficient at transferring momentum.
- The Pursuer did not report the matter to his insurers, despite the damage sustained to the vehicle – it was the Pursuer's agents who notified insurers.
- The Pursuer did not attend for medical treatment
- There were also concerns in relation to occupancy. It was claimed in the Summons that a male was the driver and there was a female passenger. However, the insured stated that a female driver exited from the driver's seat following the accident.
- We put forward an offer of abandonment, which was accepted by the Pursuer.
- Client savings £9,550
- Client savings £14,578 (on linked passenger action also dismissed)
- Bogus Passenger
- The Pursuer raised an action claiming £5000 as a result of alleged injuries sustained in an RTA.
- The Pursuer alleged that he was the driver of a vehicle, which was struck in the rear by the insured's vehicle and he suffered injuries to his neck, shoulder, left knee and experienced fear of travel.
- There were also claims for injuries to a passenger.
- The insured disputed that the Pursuer was driving and confirmed that there were no passengers in the vehicle.
- The Pursuer attended A&E minor injuries on the day of the accident with an injury to his neck and left knee – there was no mention of shoulder pain.
- There were concerns with the medical report produced by the Pursuer. The expert failed to properly consider the inconsistent reporting of injuries by the Pursuer.
- The Pursuer claimed he was unable to play football post-accident due to his injuries however, our investigations confirmed that the Pursuer continued to play regularly post-incident. Evidence was obtained pre litigation of the Pursuer skydiving four months after the accident
- There was compelling evidence to suggest that this was a fraudulent claim and a robust defence was advanced. Various tactical measures were employed during litigation to ensure that the Pursuer was aware that we held significant concerns.
- In light of the evidence the Pursuer's agent withdrew from acting.
- The action was dismissed with expenses in favour of the Defender. The Pursuer paid the Defender £4000 in respect of legal expenses.
- Client savings £11,000
- Client saving linked bogus passenger claim £9,340
- The Pursuer raised an action seeking £5000 for injuries allegedly sustained in a RTA. The Pursuer claimed to be a passenger in a stationary vehicle waiting to exit a car park when the insured's vehicle travelling behind collided with the rear of the Pursuer's vehicle. The Pursuer allegedly sustained neck pain, right shoulder pain and an occipital headache.
- The Pursuer gave varying accounts of the circumstances of the accident
- This claim was linked to three other claims arising out of the same accident. We had phantom occupancy concerns given that the owner of the vehicle in which the Pursuer claimed to be travelling, was the employer of two of the other claimants, and he confirmed that the vehicle was a two-seater vehicle which could not carry any passengers.
- At the outset we put forward a robust position setting out all of the concerns together with an offer of abandonment on a no expenses basis which was accepted by the Pursuer.
- Client Savings - £11,700
Lindsay Ogunyemi discusses risk management for professionals in the wake of the pandemic.
The team continue to use creative and commercial strategies to seek to resolve often high value and complicated professional negligence claims. The following examples highlight the team's use of their expertise to securing substantially discounted settlements, saving clients costs and time in the process.
- The Pursuer raised an action in the Court of Session seeking damages in excess of £1M and we were instructed to represent the Defender, a firm of solicitors.
- The Defender's solicitors were exposed, having provided negligent advice to the Pursuer in relation to a property sale and a related contract.
- Causation and quantum were in dispute. The Pursuer had failed to properly formulate his claim as a loss of opportunity claim.
- Utilising commercial court procedure, we exerted pressure onto the Pursuers to plead a relevant case or face dismissal of the action.
- After the Pursuer amended, we asked the commercial judge to require the Pursuer to set out the relevance of the amended claim. The judge agreed and assigned a short deadline for the Pursuer to do so.
- The Pursuer was unable to comply with the deadline and sought to reach a compromise extra-judicially.
- We rejected the Pursuer's extra-judicial offer and lodged a low tender.
- Ultimately, the Pursuer accepted a settlement offer at just over 10% of the sum sued for – an excellent result for the Defender and our insurer clients.
This case is an example of how tactical use of the flexible commercial court rules can drive matters to a swift and cost effective conclusion.
- We were instructed by professional indemnity insurers in respect of a claim against a firm of architects for payment of damages in the sum of £430,000
- The claim related to allegations of breach of contract and professional negligence pertaining to alleged failures by the architect to properly specify the windows and cladding of a property.
- The allegations of negligence were robustly denied by the architect from the outset and we obtained a supportive expert report.
- We argued that the claimants had failed to direct the claim at the correct parties given that it was our view that liability for the matter would rest with the Clerk of Works and specialist sub-contractor who failed to follow the architect's specification.
- We continued to repudiate liability at which stage the claimants confirmed they would soon proceed with formal Court proceedings.
- In further repudiating the claim, we reached the view that the claimants' claim had prescribed by virtue of the Prescription and Limitation (Scotland) Act 1973 with reference to the recent case of Midlothian Council v Blyth & Blyth.
- Having advised the claimants of our position in respect of prescription, they advised that they would be willing to accept a much lower sum (approximately 20% of the sum claimed) in full and final settlement of the claim.
- We rejected the claimants' proposals and maintained our robust position in respect of liability and prescription.
The claimants subsequently abandoned the claim against the architect and we therefore avoid unnecessary protected litigation and expense.
What are we doing?
We will continue to reach out to clients and are working on innovative ways to deliver training and events.
For further information please contact:
Andrew Lothian, Head of General Insurance (Scotland) on 0131 474 2305
Alison Grant, Partner, Professional Indemnity (Scotland) on 0141 228 8127
Jill Sinclair, Head of Counter Fraud (Scotland) on 0141 228 8196
Caroline Coyle, Senior Associate and Professional Support Lawyer, Insurance on 0141 228 8132