Navigating the global liability defence agenda
A whistle stop tour of key Scottish legal changes in 2021
There is no denying that the last two years have been challenging and, in terms of the Scottish legal world, it has not always been easy to keep the wheels of justice turning in such unprecedented times. However, a number of new pieces of legislation have received Royal Assent, the switch to digital hearings has sparked a contentious consultation process and there is an update on loss of society claims in Scotland.
The Redress for Survivors (Historical Abuse in Care) (Scotland) Act 2021 received Royal Assent on 23 April 2021. This legislation is designed to establish an alternative Redress Scheme (the Scheme) to civil proceedings, giving survivors of historical abuse a more accessible means of justice through financial and non-financial redress. The Scheme is on track to open for applications in December this year, remaining open for 5 years, for survivors of abuse occurring before 1 December 2004.
The Scheme will be funded by the Scottish Government with contributions from interested organisations. It is not known how this will operate, however, it is intended that relevant organisations will provide “fair and meaningful” contributions to the Scheme, assessed on the level of applications for redress concerning them and any potential payments that may follow. In doing so, organisations agree to publicly and explicitly recognise the harm or wrongful acts faced by survivors.
Redress Scotland will assess the applications, while Scottish Ministers will monitor contributions, if those are “fair and meaningful”, the organisation will be granted a “waiver”. This document will be signed by any survivor who is accepting redress funds relating to a relevant organisation and accepts that they must not raise or continue any civil court proceedings against that organisation.
2021 has also brought Qualified One-Way Cost Shifting (QOCS) to Scotland. The Civil Litigation (Expenses and Group Proceedings) (Scotland) Act 2018 received Royal Assent in 2018. It provides that, where a person brings an action for personal injuries, or death, and has conducted the proceedings in an “appropriate manner”, the court must not make an award of expenses against the person in respect of any expenses relating to the claim itself, or any appeal.
QOCS came into force on 30 June 2021 with the specific rules being published at the start of June. It is intended to increase access to justice and certainty, and the rules are not retrospective.
Section 8 considers that parties will be able to recover costs where the defenders show that the pursuer or their representatives has made a fraudulent representation; acted fraudulently; behaved in a manner which is manifestly unreasonable or the court considers amounts to abuse of process. There are currently no statutory definitions of what constitutes the above and these are new or rare tests for Scotland.
It still remains the case that the defender can recover costs if the award of damages is less than the sum tendered. Recovery will also be an option where the pursuer has delayed in accepting the tender, abandonment of the action or appeal, and where the pursuer’s case is summarily dismissed by the court. Any recovery is however restricted to 75% of the damages awarded to the pursuer.
The pandemic also saw the introduction of court documents being lodged online and remote hearings, either by telephone or WebEx. The Scottish Civil Justice Council consulted with members covering the mode of attendance at civil court hearing. It has sparked a lot of debate in respect of access to justice and determining the credibility and reliability of witnesses during substantive hearings when they call remotely.
Scottish fatal awards were considered further in the recent judgement of McArthur v Timerbush Tours Ltd  CSOH 75. This reflects the realities of modern relationships whilst highlighting the gap that exists in how fatal cases are approached by our English counterparts.
The deceased’s parents separated when he was nine but shared his care. The step-father and half-sister relationships featured as part of the claim. The deceased lived some distance from his family. The mother and father were each awarded £100,000; the half-sister, despite a 14 year age gap with the deceased, was awarded £45,000; and the step-father was awarded £70,000.
This case shows the difficulties faced by defenders when challenging the closeness of the relationship between a deceased and their family. It is also a stark reminder that fatal awards in Scotland are much higher than those in England & Wales.