Product Liability 2009 - Arnold & Porter LLP

Scotland
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McGrigors LLP Scotland
7.3 If so, are there any restrictions on the availability of public
funding?
There are three criteria against which availability of civil legal aid
is determined in Scotland.
(a) Probable cause
This is a relatively low threshold to cover, for example, jurisdiction,
title to sue and a legal basis for action. It is not an assessment of
likely success.
(b) Reasonableness
This involves a cost-benefit analysis and an assessment of prospect
of success and recovery. The test also involves assessing whether
private client of moderate but not abundant means would pay to
raise or defend proceedings.
(c) Financial eligibility
Both income and capital are assessed. Income in the previous 12
months is taken into account as well as the capital that the applicant
has at the present date. Depending on these matters, the applicant
may be refused or asked to contribute to the legal aid.
Successful cases that recover money or property can be subject to
‘clawback’. This would mean that any shortfall between the
expenses awarded and any contribution made by the claimant
compared with the solicitors’ fees paid by the legal aid board could
be recovered by the board from the profits of a successful case.
7.4 Is funding allowed through conditional or contingency fees
and, if so, on what conditions?
Yes. There are no Conditional Fee Arrangements in Scotland but a
“no win, no fee” arrangement may be available.
Jacqueline Harris
McGrigors LLP
Princes Exchange, 1 Earl Grey Street
Edinburgh
Scotland
Tel: +44 131 777 7136
Fax: +44 131 777 7003
Email: Jacqueline.harris@mcgrigors.com
URL: www.mcgrigors.com
Jacqueline is a partner in McGrigors’ Litigation & Dispute Resolution
Team. She is an experienced commercial litigator who specialises
in product liability and environmental disputes. She has experience
of a wide range of product liability issues including risk
management, product recall and litigation (primarily for defenders)
across a range of industries including tobacco, pharmaceutical,
alcohol and manufacturing. Jacqueline represented Imperial
Tobacco Limited in the first UK case to reach proof (trial) in relation
to a claim for damages allegedly caused by smoking tobacco
products. The defence was successful on all fronts.
7.5 Is third party funding of claims permitted and, if so, on
what basis may funding be provided?
Yes. Insurance may be available.
8 Updates
8.1 Please provide, in no more than 300 words, a summary of
any new cases, trends and developments in Product
Liability Law in Scotland.
There have been few developments in Scotland over the last year.
The Scottish government demonstrated its intention to differentiate
itself in certain fields such as pleural plaques legislation. The
Damages (Asbestos-related Conditions) (Scotland) Bill was passed
by Scottish Parliament in March 2009 and its expected to received
Royal Assent in April/May. It provides that asbestos-related pleural
plaques constitute “actionable harm” for the purposes of an action
for damages for personal injury (thus over-turning the decision of
the House of Lords in Grieves v FT Everard & Sons Ltd [2007] UK
HL 39).
The results of the Civil Courts Review are expected in mid 2009
and may affect dispute resolution methods (such as mediation) and
the introduction of class actions. Law Applicable to Non-
Contractual obligations (Sc) Regulations 2008 are now in force
importing jurisdiction in product liability cases.
Heidi Archibald
McGrigors LLP
Princes Exchange, 1 Earl Grey Street
Edinburgh
Scotland
Tel: +44 131 777 7123
Fax: +44 131 777 7003
Email: heidi.archibald@mcgrigors.com
URL: www.mcgrigors.com
Heidi is a Senior Associate in McGrigors’ Litigation & Dispute
Resolution Team. Heidi has extensive experience advising clients on
a range of areas including Product Liability, Property Litigation and
contentious environmental. She has represented clients in a variety
of industries in regulatory prosecutions such as product safety, food
standards and health and safety. She regularly advises insurers in
personal injury actions. Heidi also has substantial experience
advising clients on dealing with situations as they occur,
communications with regulators and defending court actions in
order to achieve the best possible outcome for the client.
McGrigors has established itself as one of the UK’s largest and most dynamic full-service commercial law firms, thanks
to a distinctive working approach. We see law as a means to an end. It’s about understanding the commercial goal
you have in mind then finding the most pragmatic way to achieve it. We also believe law is about relationships. We
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