28 LEGAL
BM: How is Scottish law different to the compensatory amounts received rather
English law? than by the third party responsible.
SH: Scotland has a unique legal system. Unlike criminal injuries compensation in
Since the Acts of Union in 1707, it has shared Scotland, which runs as in any part of the UK
a legislature with the rest of the United where the claimant and the solicitor running
Kingdom, but it remains different, although the case agree to a fi xed percentage (normally
over the years, has been infl uenced by between 20 per cent to 30 per cent), there is a
English and European law. And, in particular, fee system for the settlement of injury claims
the Scotland Act in 1998 resulted in the pre-litigation in Scotland.
establishment of the Scottish Parliament,
which can also pass laws within its areas of These fees are governed by the Scottish
Why
competence. voluntary pre-action protocol that applies to
almost all the major insurers in Scotland. The
The main differences between the legal fees are paid in addition to any settlement
systems in Scotland and England are in agreed. There is a fi xed “investigation
Scottish
property, criminal, trusts, inheritance, evidence fee” plus a further fee that is calculated by
and family law. There are also considerable reference to the damages that are agreed.
similarities in areas of national interest such as
commercial and taxation law. Where cases do not settle and a court action
legal
is necessary there is a scale for the assessment
The age of legal capacity is 16 in Scotland of fees. Where a court action is raised the fees
(for certain matters) and 18 in England. In structure applies to virtually all cases whereby
expertise
Scotland, criminal juries are composed of 15 for each step in the action a specifi c fee can
individuals, whereas in England, it is 12. be claimed. In Scotland, higher percentages
charged on the lower amounts:
Finally, in terms of insurance law, in Scotland,
makes
solicitors cannot reclaim fees on an indemnity • On settlements up to £2,500 25 per cent
basis automatically. The court has discretion • On the excess over £2,500 up to £5,000
to award costs on this basis but is rarely asked 15 per cent
to do so. • On the excess over £5,000 up to £10,000
sense
7.5 per cent
• On the excess over £10,000 up to £20,000
BM: Is making an accident claim in Scotland 5 per cent
a different process? • On the excess over £20,000 2.5 per cent
SH: Not really but the client should consider Such a system for accident compensation in
the instruction of a Scottish solicitor. Firstly, Scotland may seem less claimant-friendly but
a broker should advise their client to use a it protects third parties from high legal fees
Scottish fi rm of solicitors where the accident from the suing party’s solicitor which has been
has happened in Scotland or involves a widely criticised elsewhere in the UK. It also
Scottish defender. An English or Welsh law allows solicitors for defenders to advise their
fi rm may not take on an accident claim that clients of the likely costs involved in defending
has occurred in Scotland. the action.
The majority of solicitors in England and Brokers may also want to recommend that
Wales will offer to run an injury case as on a no clients purchase ATE insurance (if they do
Stephen Hay, associate with
win no fee injury basis claim, but in Scotland not have BTE cover) - which could prove
Gildeas Solicitors, talks to
it may be necessary to agree to a payment of benefi cial in regards to the fi nal amount of
costs out of any compensation. compensation received. Further, if the witness
Brokers’ Monthly about why evidence is not favourable and the Sheriff
brokers should recommend
The insurer may argue that the English or feels that the defender is not responsible
Welsh solicitor had no right to act. The other the insurance provides protection from costs
a law fi rm North of the factor is if a court action has to be raised
being awarded against them.
border when clients could be
the matter will have to be transferred to a
Scottish solicitor in any event, leaving the BM: What is the situation regarding pleural
af_f ected by Scotland’s laws
customer wondering why they were referred plaques in Scotland?
to a solicitor who could not raise an action for
them. SH: Scotland has recognised the right to claim
for pleural plaques - which is not the case in
The majority of the costs are payable out of the rest of the UK. This in an important - and
Insurance Brokers’ Monthly February 2010
Legal 28-29.indd 1 1/2/10 14:01:04
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