Further detail emerges on the Scotland-only COVID-19 public inquiry and on Scottish Government’s developing response to the Omicron variant 

In a statement to the Scottish Parliament on 14 December 2021, John Swinney MSP, Deputy First Minister (link here) announced the appointment of a Scottish Judge, Lady Poole, as the chair of a Scotland-only COVID-19 public inquiry and the publication of terms of reference for this inquiry (link here). This inquiry is being established under the Inquiries Act 2005.

Though noting that “the emergence of the Omicron variant is a stark reminder to us all that this pandemic continues to evolve and challenge us”, Mr Swinney did not consider that the emergence of Omicron should “delay our efforts to learn from the past” but should rather be considered as underlining “the importance and urgency of learning lessons from what has gone before.”

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Disease claims to become subject to fixed recoverable costs – summary and initial view

Earlier in the week the Ministry of Justice re-affirmed its intention to extend fixed recoverable costs (FRC) to all fast track civil clams claims and, albeit on a different basis, higher value claims below a proposed £100,000 threshold (so-called ‘intermediate value’ cases). Alongside costs budgeting in multitrack cases, a regime of fixed recoverable costs is seen bringing control and predictability to litigation expenses.

Extending FRCs in this way will mean that the majority of disease claims will be captured by FRCs for the first time. When fast track FRCs were introduced in 2013 for ‘portal’ claims, only EL disease (ELD) claims against a single defendant were caught. [It is worth recalling that the portal was conceived for straightforward single claimant vs single defendant claims and for that reason alone it is ill-suited to disease work.]

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Annual work-related deaths due to accidents increase to 142. Mesothelioma deaths still exceed 2,000

On 7 July 2021 the Health & Safety Executive released provisional data on work-related deaths in England & Wales and Scotland in 2020/21. The data excludes ‘conventional’ occupational diseases as well as excluding COVID-19. Worker fatalities increased from 113 in 2019/20 to 142 in 2020/21 (a 25% increase) although HSE reports that last year “was low compared to other recent years [and] in statistical terms the number of fatalities has remained broadly level in recent years.” It is worth noting that despite this increase, Great Britain remains comfortably within the lower quartile of work-related fatality rates when compared to European countries.

In contrast, work-related fatalities involving members of the public fell from 106 to 60 in 2020/21. HSE points out that this “is statistically significantly lower than in earlier years and almost certainly reflects the lockdown restrictions in place on the British public over the course of the year.”

A separate HSE publication also released this month updates statistics and projections for mesothelioma deaths. An annual count of more than 2,300 deaths from the disease can hardly be described as positive, but HSE records that the total is 7% lower than the average over the last seven years. The total masks a notable difference between the sexes. The observed reduction of 9% in male deaths is “in-line with earlier predictions suggesting that annual mesothelioma deaths would gradually start to reduce by around year 2020.” However, the figure for female deaths (which form slightly more than a sixth of the total) remains similar to earlier years but, once again, is “in-line with earlier predictions suggesting that annual counts during the 2020s would remain at the current level before starting to decline.”

Both HSE publications can be accessed via links in the HSE’s press release of 7 July.


Alistair Kinley, Director of Policy & Government Affairs
alistair.kinley@blmlaw.com