Ellis v Deheer
| Jurisdiction | England & Wales |
| Date | 1922 |
| Year | 1922 |
| Court | Court of Appeal |
Trial by Jury - Delivery of Verdict by Foreman in hearing of some only of the Jury - Affidavit by a Juror that Verdict not that of whole Jury - New Trial.
On an application for a new trial of an action tried before a jury, on the ground that the verdict as delivered by the foreman was not the verdict of the whole jury, the Court admitted affidavits of certain of the jurors that they did not hear the verdict delivered and did not assent to it, and, accepting those statements to be true, they held that they were not precluded from granting a new trial by the fact that the objection to the verdict was not taken until after the jury had been discharged.
APPLICATION for a new trial.
The action, which was brought to recover damages for personal injuries sustained by the plaintiff in a collision between his motor-cycle and the defendant's motor-car, was tried at the Leeds Assizes before Mr. Commissioner Macmorran and a special jury. The Commissioner having summed up, the jury retired to the jury room to consider their verdict. On their return after an absence of an hour they found the jury box occupied by a jury trying another case. The passage from the jury room to the Court leads behind the jury box, which has a high wooden back shutting off all view of the Court from persons in the passage. Owing to the small available space only the foreman and two or three of the jury were able to get into the body of the Court. The rest of the jury remained in the passage behind the jury box. The foreman in answer to the associate said that they were agreed upon their verdict, which was that both parties were equally to blame. The Commissioner thereupon directed judgment to be entered for the defendant, and the jury left the building. The following day a Mr. Patrick, a member of the jury, came back to the Court and complained to the associate that the verdict given was not the unanimous verdict of the jury. He subsequently made an affidavit that owing to his position behind the jury box at the time the verdict was delivered he did not hear what the foreman said, and added: “If I had heard him pronounce the verdict which I am told that he did pronounce I should have protested and told the Court that such was not the verdict of the jury.” Two other members of the jury also made affidavits to the effect that they did not hear what the foreman said.
On those affidavits an application was made to the Court of Appeal for a new trial on the ground that the verdict given was not the verdict of the jury.
Mitchell-Innes K.C. and Paley Scott for the plaintiff. In Rex v. WoollerF1 where the facts were very similar the Court granted a new trial. There as here when the jury returned from the jury room they were unable to go into the jury box as it was occupied by another jury. Only the foreman and three other jurymen appeared in view of the Court, the others answering to their names from a small room behind the judge's seat, and separated from the Court by a wooden partition. The trial was of an information for libel. The foreman in answer to the usual question from the officer of the Court said they found the defendant guilty. Shortly afterwards counsel on behalf of some of the jury stated to the judge, Abbott J., that they did not all concur in the verdict, and that, not being in the Court, they had not heard what passed. The following term, on an application to the King's Bench for a new trial, Abbott J. stated the above facts, and added: “that since all the jury were not in Court at the time when the verdict was delivered, it was possible that all the jury might not have heard what passed.” It having been suggested by the Attorney-General that the fact that some of the jury did not hear the verdict should be stated by affidavit. Lord Ellenborough refused to accept any affidavits from the jurymen, holding that the Court were shut out from acquiring knowledge of the fact by that means, but the Court acted upon the above statement by Abbott J. In the later case of Roberts v. HughesF2 it was held that affidavits of jurors as to what took place in open Court on the delivery of their verdict are receivable. It was said that: “The rule does not exclude jurymen from swearing to what took place in open Court, but only as to what took place in their private room, or the grounds on which they found their verdict.” The effect of those two decisions is that the affidavits now tendered are receivable, and that upon the facts stated in them the plaintiff is entitled to a new trial. But if the Court is disinclined to accept the affidavits of the jurors the...
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