As we head into 2023, our specialist Professional Indemnity team reflects on our Top 5 Takeaways from 2022.
1. Long-awaited legislative changes on Scottish rules on time limits
On 1 June 2022 some sections of the Prescription (Scotland) Act 2018 came into force. These provisions amended the starting point for the 5-year period for Scots claims arising from breach of contract and delict, including negligence. They also allow for a narrow equivalent to standstill agreements of up to 1 year in certain circumstances. We blogged on the impact of these new provisions, which you can find here. The new rules make the landscape on time limits ever more complex so early legal advice for parties pursuing or defending a claim remains advisable.
2. Building Safety and Cladding
The Building Safety Act 2022 also came into force in 2022. The Act introduced new duties of care and causes of action, which are to apply retrospectively. It also made significant changes to the law on time limits in certain construction disputes, both north and south of the border. Many of the Act's substantive provisions are due to be implemented by secondary legislation over the course of the next two years, but some important changes have already come into effect (e.g., "qualifying" leaseholders now no longer need to pay anything to remove dangerous cladding from buildings). The wider implications of the Act's introduction (and some possible unintended consequences for Scotland) are discussed in more detail in our blog which can be found here.
3. A milestone for the law on negligence
The landmark case of Donoghue v Stevenson [1932] SC (HL) 31 and the tale of the immortal "Paisley Snail" celebrated its 90th anniversary on 26 May 2022. This was the foundational case in the law of delict (known in England & Wales as tort) in common law jurisdictions worldwide. This is because the judgment set out the basis for the common law of negligence and the general principle of underlying duty of care. Full details can be read here.
4. Continued reconsideration of the SAAMCo principle
The law continued to develop in the wake of Manchester Building Society v Grant Thornton [2021] UKSC 20, which had of course reconsidered the long established SAAMCo principle and in doing so, set out a six part test for assessing the extent of a professional's liability for negligence. Details of the test can be found in our blog here. The significance of this decision lies in its potential for those pursuing negligence claims to seek a larger proportion of their losses from the professional(s) facing allegations. The courts continued to grapple with the newly clarified SAAMCo principle, which was recently applied in SD (LD's Legal Representative) v Grampian Health Board [2022] CSOH 63, and which we have commented on here. It was successfully relied upon by the defenders in that case to avoid any liability for negligence, serving as a reminder to all professionals of the importance of clearly defining the extent and scope of their duties. We'll be looking at this topic in more detail in our upcoming Spring Seminar series, details of which will be published shortly.
5. Alternative Dispute Resolution in a post-pandemic world
Our team saw a continued appetite for mediation in 2022; and the mediators we have worked with post-pandemic have predominantly had a preference for remote/hybrid mediations, in an attempt to be more sustainable and to adopt some of the benefits and virtual skills learned during the pandemic. As a result, the usual lead-in and preparation time for mediation has become much shorter in some cases. Concerns around wellbeing and mindfulness (as discussed in this article by our team) are impacting ADR too. One mediator our Professional Indemnity team worked with in 2022 no longer books separate mediations on consecutive days due to having developed mindfulness and reflection as a key part of their practice. This allows them time to reflect before launching into the next mediation, ensuring that participants get the mediator's best self and best performance. Appetite for in-person ADR seems to be continuing to grow, however, so it will be interesting to see whether parties continue to embrace the concept of hybrid sessions.
Summary
For more information on any of our Top 5 Takeaways in Professional Indemnity, or any related issues, get in touch with our team members below or your usual Brodies contact.
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