Meeting of the Parliament 26 April 2018
Amendment 2A would amend amendment 2, in the name of Daniel Johnson, the effect of which would be to remove the ring fencing of future loss that was agreed to by the Justice Committee at stage 2. I have therefore lodged amendment 2A in an attempt to mitigate the potential adverse consequences of the future care costs that would be lost to lawyers’ fees.
Under the terms of the bill as introduced, a success fee agreement could include a damages-based award as part of the solicitor’s fee. That could include past and future loss. In recognition of the importance of protecting future loss and the associated care and support for injured pursuers, the Justice Committee amended the bill at stage 2 and ring fenced future loss. That was supported by the European Court of Human Rights and representatives of the insurance industry.
However, Sheriff Principal Taylor subsequently wrote to the committee to express his opposition to that decision and set out the reasons why; Daniel Johnson accepted those reasons in lodging his amendments. In support of his view, Sheriff Principal Taylor stated that, in England and Wales, the effect of ring fencing future loss on DBAs was that lawyers will not enter into a DBA. In doing so, however, he has not taken into account the fact that in Scotland, unlike in England and Wales, lawyers entering into DBAs can, in addition to those agreements, claim judicial expenses and potentially an additional fee that recognises the complex nature of cases that can take many years to conclude. The additional fee or uplift can amount to three or four times the original award for judicial expenses.