Fighting the good fight

Gordon Dalyell has been a representative for Scotland on the Association of Personal Injury Lawyers’ (APIL) executive committee since 2010 so he’s no stranger to the organisation’s passionate and dogged campaigning on behalf of injured people.

In conversation with the passionately politicised Scot, it takes very little time to recognise how committed he is to securing fair settlements for personal injury claimants and for helping legislators to grasp the importance of doing so.

Dalyell qualified as a solicitor in 1990 and has been a personal injury partner at Edinburgh-based Digby Brown since 1998. Asked what led him into personal injury practice in particular, he says: “In a way there's no one single event that precipitated it”, adding “I've always felt strongly about employees’ rights in the workplace”.

He continues: “When you are employing somebody you have a level of control which is serious, and ought to be taken seriously, because you're responsible for somebody's safety. I suppose, also, I've always had quite strong political views and more in favour of the employees and workers side”.

When he’s not immersed in campaigning for APIL, Dalyell specialises in road traffic accidents, work accidents and fatal accidents for Digby Brown – the latter may explain his strength of feeling around fair compensation for bereaved families.

Reflecting on 20 years specialising in personal injury, he explains: “I have always found acting for people who have been injured to obtain fair recompense to be the most rewarding part of the job. The wider context is safety at work, in road traffic cases absolutely there's things which the government or the local authorities can do better in this particular area or that but the workplace has always been a strong passion of mine.”

Dalyell has no ambition to reinvent the wheel at APIL, he admits that much of his focus over the next two years will be campaigns that pre-date his tenure as president and which he worked on with his predecessor.

One such initiative is to maintain regular contact with APIL’s membership, which means meetings with member firms at least every 18 months to two years. “We have regular meetings with firms who have a set number of members and meet the membership as much as possible to keep abreast of what they are thinking”, he says.

What kinds of issues do they raise? Unsurprisingly, many of the items that have been on APIL’s hit list for years, including the personal injury discount rate which after tirelessly campaigning for a review, was reduced to 0.25 per cent shortly after Dalyell became president.

“It’s probably one of the most satisfying pieces of work that we've done as an organisation”, he recalls. “That really has been a long-running campaign where we have consistently for a number of years been arguing that the discount rate needed to be reviewed. We took action as an organisation a few years ago in relation to judicial review and then eventually the rate was reviewed back in 2017 coming up with the rate of -0.75 percent.”

The latest rate is a better reflection of the uncertain economic times we live in and the challenges faced by those whose incomes and living expenses have been affected by injury or illness. As Dalyell explains: “We're talking here about people who can't afford to risk their award of damages because that's what they need to look after themselves, and their care needs over potentially many decades”.

That money has to offer them a semblance of the security they lost in whatever circumstances gave rise to the claim. “Even just in the last few weeks there's been a number of articles in the business media saying that in fact people who are investing want an absolute guaranteed return, they're losing a bit of money but investing elsewhere is far riskier”, he adds. “We’re not talking about people who can afford to lose money, it's not an investment.”

While Dalyell clearly remains determined to further improve the situation for personal injury claimants, he is complementary of the former lord chancellor David Gauke for what he describes as “a fair decision”.

“It accurately reflects what people need to ensure that their needs are looked after in the medium-term and into the long-term”, he says, but flags that other UK jurisdictions are yet to review the discount rate.

Naturally, Dalyell turns to Scotland where he anticipates an announcement this autumn. He believes the Scots will follow England’s example but highlights that the situation is different north of the border.

“The mechanism for setting the rate is different. It may well be that the rate is lower because the portfolio that is set out in the Scottish legislation is more cautious. So that is likely to bring a lower rate of return. And in addition, there are statutory adjustment factors that need to be taken into account. We may see a discount rate that is the same, at -0.25 per cent, or it may be less than that because of the cautious nature of the portfolio.”

Furthermore, the ongoing legislative impasse in Northern Ireland means that the discount rate remains 2.5 per cent there. “As an organisation we want to draw together the best parts of each of the jurisdictions that make up the UK and essentially try to establish best practice, so that people can achieve the best results and fair results”, Dalyell explains.

Again, Dalyell looks to his home nation for inspiration for the harmonisation of UK law regarding bereavement damages. In Scotland, he explains, a wide pool of claimants from the extended family are able to claim damages. In contrast, in England, Wales and Northern Ireland damages are limited to a spouse, dependent children under 18 or, in the case of a child that's killed, the parents. Those family members are eligible to claim a share of a fixed sum of £12,980 in England and Wales or £15,000 in Northern Ireland, while in Scotland individual claimants have been known to receive sums in excess of £120,000, with each award made on merits of the individuals case and no ringfencing of the money available.

“How can you assess the value of losing somebody. The first answer is of course you can't”, Dalyell says. “But actually it is a figure to reflect the loss of that companionship. The grief of losing somebody or, in Scottish legislation, loss of society – just losing their support and guidance and there are many cases where somebody is killed through the fault of somebody else. A classic example is an accident at work.” He says he and APIL’s new CEO Mike Benner will be highly focused on bringing the law in England, Wales and Northern Ireland into line with the law in Scotland on this front.

Meanwhile, APIL remains concerned by the wider social picture, including the ongoing rise in litigants in person and the potential instability that may arise from Britain’s exit from the European Union. Dalyell’s take on both issues is characteristically provident.

Summarising the economic uncertainty the UK faces, he says: “We worry that in harsh economic times what happens is that employers, in particular, will cut corners. They will reduce what they spend on health and safety and so there's a gradual lessening of standards and its more dangerous to be in workplaces. There’s less money about to spend on safety and that leads to more accidents.”

Hannah Gannagé-Stewart is managing editor of Solicitors Journal