Objection to jury damages guidance must be stated immediately, judge rules

An exception to a direction to a jury in a civil action must be taken as soon as the directions are concluded, a Court of Session judge has ruled.

Lord Tyre issued a decision setting out his reasons for refusing a note of exception tabled more than an hour after the jury had retired in a damages action by Caroline Bridges against Alpha Insurance A/S, arising from the pursuer having been struck by a car driven by the defenders' insured. He also set out the guidance he had given the jury as to valuation of their award.

The judge noted that the relevant procedure rule (rule 37.7 of the Court of Session Rules) explicitly required intimation to be made "immediately on the conclusion of the charge", rejecting an argument that since the decision in Hamilton v Ferguson Transport (2012) on giving guidance to the jury in relation to damages, there was "scope for latitude" in how to interpret "immediately". "The practice is well settled: intimation must be made immediately and the exception has to be 'formulated hurriedly while a doubtless impatient and puzzled jury waits'", he observed, quoting a 1948 decision which he accepted as still reflecting the true position.

He added that he was not persuaded that the pursuer’s proposed exception related to a direction on a point of law, as required by rule 37.7. "As a generality, non-binding guidance to the jury on quantification of damages is not a direction in law", Lord Tyre stated.

Regarding the jury's assessment of their award, the judge had emphasised to them that he could not tell them what to award "as the question is for you, not me".  He had added: "What I can do is give you as guidance, which is not binding on you, a range of figures that you may care to consider. I emphasise again though that it is for you to decide. You are perfectly entitled, if you think it right to do so, to choose a figure outside the range that I will mention."

He had then indicated from his knowledge and experience, trends of awards that had been given in cases that might be regarded as in some ways similar to the present one, having regard both to awards by judges and awards by juries, and also to published judicial guidelines. "I have not included in the range every single case; rather I have looked to see if patterns emerge from cases to show the sort of amounts that have been awarded in cases dealt with by courts here... I repeat, however, that this is only guidance that you may accept or reject as you wish, and that if you choose to award a figure outside this range you are free to do so.”

Click here to view the opinion.