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Damages Bill

As many of you may be aware the Damages (Scotland) Bill is a private member's Bill currently proceeding through the Justice Committee of the Scottish Parliament. The Bill was introduced by Bill Butler MSP. It follows a 2008 Scottish Law Commission report looking at damages in fatal cases.

A consultation exercise concluded towards the end of August 2010 and oral evidence was heard during September. Only two firms of solicitors have been invited by the Justice Committee to give evidence - Simpson & Marwick and Thompsons. Frank Maguire of Thompsons and our Gordon Keyden gave evidence to the Committee on Tuesday 21 September. At the outset the Chair of the Justice Committee took the opportunity to congratulate Simpson & Marwick on their recent success in being named Litigation Firm of the Year 2010.

The evidence given to the Committee was in the form of a panel involving Simpson & Marwick, Thompsons, a representative from the Forum of Insurance Lawyers and a representative of the Association of Personal Injury Lawyers. The main issue arising from the Bill is fixing the percentage of living expenses of the deceased at 25% in all cases. In calculating future loss of support that fixed percentage is to be used, and the proposal in the Bill is that the income of the surviving spouse should be ignored in the calculation. In many cases this will significantly increase the levels of award. That, however, is not the primary basis for opposing the fixing of a percentage deduction. There will be cases (for example involving the death of a young father with several children) where a deduction of 25% will in fact under compensate the family. In those circumstances it may well be that the living expenses of the deceased would only be 15% of his net income. This example highlights that a fixed figure does not suit all scenarios, and the status quo where parties agree the figure between themselves, or have the court fix it, should remain.

The Scottish Government have also commenced a consultation process on damages in fatal cases. The Government have approached Simpson & Marwick requesting a meeting to obtain as much background information as possible to allow the Government to come to a view as to whether it should support the Bill, or whether it will look to introduce its own Bill.

Contributed by David Tait