Jury trials in the Court of Session

With the introduction of new procedures for personal injury actions in the Court of Session as from 1 April 2003, with greater emphasis on speed towards a final determination of the case, the time may be ripe to revisit some of the outstanding questions about jury trial as a method of reaching that determination. Experience of a relatively recent example of a case which proceeded to a final conclusion before a jury provokes further questions.

The Heasman arguments

In Heasman v J M Taylor & Partners 2002 SLT 451 an Extra Division was called upon to scrutinise the system of jury trial against the background of the Human Rights Act. In declining to rule that jury trials were, per se, incompatible with Convention rights the court nevertheless deferred decisions on a number of issues argued before them and accepted that their judgement might raise as many questions as it answered.

The court had been called upon to consider a system under which no specific directions are generally given to juries on the range of awards which have previously been considered appropriate for solatium in respect of particular injuries (whether these previous awards derive from judicial or jury decisions). The court declined to rule, in the abstract, that the absence of such directions necessarily prevented a defender obtaining a fair trial under the Convention. Never the less it is plain that the court were not entirely happy with the system – Lord Hamilton regarding it as “regrettable” that notwithstanding criticisms the system continued unchanged. Ultimately, they concluded that the issue would require to be revisited in a case where it arose in practice. They also pointed out that there was no rule of law which prevented appropriate directions being given in any particular case and that it was at least possible that the obligation on the court to act in a Convention compliant manner might require directions in a specific instance.

It is not clear from the report of the decision whether there was any real consideration of the impact on a jury of being given on the issue before them one figure and one figure alone, i.e. the sum sued for. In some instances this may, no doubt, closely accord to the estimate made by the pursuer’s advisers of any likely award, with some headroom to reflect the difficulty in precise estimation. However, experience also suggests that in a considerable number of cases the sum sued for bears little or no relation at all to any realistic estimate and is simply a conventional amount which is of no significance – at least if the case is decided by a judge. Is there a risk that a jury – even if directions were to be given – having this figure constantly before them, will be misled in such cases into the view that it is of some relevance to their task?.

In Heasman the court was dismissive of the suggestion that the difficulty of accurately tendering in view of the unpredictability of jury awards was a feature pointing to unfairness in the system. Although the argument before the court appeared to focus on the use of tenders, the court quite properly expanded that to consider the broader question of achieving appropriate settlements. Their view appeared to be that the very high level of settlement rates achieved in cases set down for jury trial suggested that “rational, non-arbitrary predictions can be and are made”. Practitioners may no doubt differ in their view as to whether that assessment is correct. An alternative view might be that rational prediction of the likely approach by the jury is extremely difficult, if not impossible in some cases. The question “What will the jury award for solatium?” may be met with little more than a shrug of the shoulders. The net result can then be not that rational prediction leads to rational settlement discussions, but that the very uncertainty – and the risk that it brings – leads both sides to accept that settlement must be made at a figure for which there is no rational basis, indeed, one driven by the inherent uncertainty of the system.

Much of the argument in Heasman centred around the absence of reasons given by a jury for its decision. It is not the purpose of this article to explore the plethora of arguments deployed. Mention may simply be made of one practical issue. Although not discussed in any detail, the court seemed to consider that it might well be possible in many cases to determine from the jury’s verdict what view they had taken on issues relevant to solatium. No doubt in a simple case that will be true. It will be possible to say that the jury has accepted evidence A as against evidence B. In other circumstances – and this is perhaps illustrated by the example below – all that can be concluded is that one of a number of approaches all leading to the same result have been followed. If some of these points are controversial, challenge on appeal will not be all that easy.

Although the defenders in the Heasman case decried any suggestion that their arguments were focused only on instances where jury awards were alleged to be excessive, it was clear that that point underlay much of what was said. Perhaps inevitably, it is cases in which significant sums are claimed and awarded which are more likely to engage the attention of the courts on appeal. In smaller cases the amount at issue may well not justify further litigation expense (especially in an atmosphere of uncertainty as to result). The example which follows perhaps goes to illustrate that similar or identical questions can arise in more modest cases with impacts which may not only be felt by defenders.

Manton v Commissioners of Northern Lighthouses

It is understood that relatively few personal injury cases set down for jury trial in the Court of Session actually proceed. One that did was the case of Mrs Jean Manton v The Commissioners of Northern Lighthouses which was heard before Lord Carloway and a jury on 21 and 22 January this year.

Although the facts – and indeed the merits – are not of particular importance for the purposes of the present article they can be briefly recounted as follows.

The Commissioners let out former lighthouse keepers’ cottages for holiday accommodation. Mr and Mrs Manton took such a let, in the course of which Mrs Manton claimed to have slipped while attempting to shower in the bath in the accommodation. She blamed the absence of a non-slip bath mat which was not immediately discoverable in the bathroom (although later discovered, it was said, in a dirty condition at the back of a cupboard). Liability was denied.

Mrs Manton sued for £40,000, claiming an assortment of minor injuries and a more significant injury to her shoulder giving ongoing difficulties with sleep, driving and so forth. Medical evidence was led as to the nature and extent of injuries discoverable on examination at hospital by a consultant; the report of that examination referred to a previous injury of which the pursuer claimed to have no knowledge which, it was thought, might be the root cause of some of the symptoms complained of. There had been no – or no significant – time off work and no operative treatment although acupuncture and the services of a chiropractor had been employed.

As stated, the sum sued for was £40,000. That was the sum which appeared on the issue which was before the jury. It remained there throughout the evidence. Following the conclusion of the evidence, counsel for the pursuer sought and obtained leave to amend the sum sued for – and thus the sum on the issue – from £40,000 to £15,000. That then, of course, required some explanation in the course of the closing speech to the jury on behalf of the pursuer, met, in part, by suggesting that in such cases the sum sued for was not a carefully calculated amount but was, it was said, “plucked from the air”.

Against that background no motion was made by the defenders for the jury to have particular directions on solatium. Lord Carloway charged the jury in relatively general terms and no exception was taken to that charge (in jury trials in the Court of Session any absence of legal directions identified by a party must be raised following the charge by way of a note of exception which is then argued before the judge and is subsequently available to any appeal court).

And so to the punch line! What did the jury make of all of this? They unanimously awarded £1,000 for solatium. It is not possible to determine whether, in so doing, the jury accepted arguments to the effect that the pursuer’s problems were really pretty minor and any award should be extremely modest or whether they accepted the argument that whatever problems the pursuer had were not, in the main, attributable to the accident but rather to her pre-existing injury. Either approach could have produced an award at that level. In itself, however, the nature of the result illustrates the risk – for both parties – inherent in venturing into that particular forum.

Postscripts

Although this note has been primarily directed at issues relating to the assessment of damages, two postscripts might usefully be added for the information of readers. First, the jury determined that the Pursuer was 80% contributorily negligent. Accordingly, her total award was some £200, plus interest. In the course of examination of jury awards when compared to judge- made awards for solatium there have been arguments that, in so far as there are differences between the two, it should not necessarily be assumed that judge-made awards are “more correct”. Judges may have got out of step with values. In cases decided by judges, awards of contributory negligence at figures such as 80 per cent are relatively thin on the ground. Was the jury in Manton in error in its assessment or was the view of 12 randomly selected members of the public that this was “largely her own fault”, which appears to be inherent in the award, a more accurate reflection of the real world?

Finally, no tender having been lodged, the pursuer was, after argument, awarded expenses on the sheriff court ordinary scale without sanction for counsel.

The popularity of driving cases towards jury trial has fluctuated from time to time. It remains to be seen what the next trend will show.