Girvan v Inverness Farmers Dairy (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD MACKAY OF CLASHFERN,LORD SLYNN OF HADLEY,LORD HOPE OF CRAIGHEAD,LORD CLYDE |
| Judgment Date | 13 November 1997 |
| Judgment citation (vLex) | [1997] UKHL J1113-3 |
| Court | House of Lords |
| Docket Number | No 1 |
| Date | 13 November 1997 |
and Another
[1997] UKHL J1113-3
Lord Browne-Wilkinson
Lord Mackay of Clashfern
Lord Slynn of Hadley
Lord Hope of Craighead
Lord Clyde
HOUSE OF LORDS
My Lords,
For the reasons given in the speech of my noble and learned friend, Lord Hope of Craighead I would dismiss this appeal.
My Lords,
For the reasons given in the speech of my noble and learned friend, Lord Hope of Craighead I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives, I too would dismiss the appeal.
My Lords,
Ever since jury trials in civil actions were imported into the law of Scotland from England by the Jury Trials (Scotland) Act 1815 it has been competent for a defender to apply to the Inner House for a new trial on the ground of excess in the jury's award of damages. A provision to that effect was included in section 6 of the Act of 1815. The current provision is to be found in section 29 of the Court of Session Act 1988. It was not until 1972 that it became competent to appeal to the House of Lords against an interlocutor of the Court of Session on a motion for a new trial, following the concern which had been expressed in the light of the decisions in McCallum v. Paterson, 1968 S.C. 280 and McCallum v. Paterson (No. 2) 1969 S.C.85. This was provided for by section 2 of the Administration of Justice (Scotland) Act 1972, the substance of which has now been re-enacted in section 40(2) of the Act of 1988. But this is the first occasion since the coming into operation of that enactment that such an appeal has been taken. Some explanation is needed of the circumstances which have brought this about, before I come to deal with the particular issues which are before us in this appeal.
The Facts
The pursuer in this case, who carries on business in Glenmoriston as a sheep farmer, seeks damages from the defenders in respect of injuries which he sustained in a road accident on 21 March 1989. The vehicle which he was driving was in collision with a vehicle which was being driven by the second defender, who was an employee of the first defenders. The pursuer raised his action against them in 1991. The defenders admitted liability to make reparation to the pursuer and the action, which is thus now concerned only with the quantum of damages, was sent for trial by jury under section 11 of the Act of 1988. On 8 December 1993 the jury assessed the damages to which the pursuer was entitled at £193,080. This was the total of sums which had been awarded by them under various headings of the pursuer's claim. It included the sum of £120,000 for solatium. In accordance with the practice which was approved in MacDonald v. Glasgow Corporation, 1973 S.C. 52, for the purpose of enabling interest to be awarded on damages for the past under section 1(1A) of the Interest on Damages (Scotland) Act 1958 as amended by the Interest on Damages (Scotland) Act 1971, their total award for solatium was divided into £70,000 for the past and £50,000 for the future. The defenders then enrolled a motion for a new trial under section 29 of the 1988 Act on the grounds of a misdirection by the trial judge and excess of damages. At the hearing of the motion counsel for the defenders confined his argument to the ground that the damages were excessive in respect of three heads of the claim. These were solatium, future loss of partnership profits and services which the pursuer would be unable to render in the future to relatives. On 29 September 1994 the Second Division held ( 1995 S.L.T. 735) that the jury's award of damages for solatium was excessive. The verdict of the jury was set aside and the court granted the defenders' motion for a new trial. They found it unnecessary to deal with the arguments which had been submitted to them in relation to the other two heads.
The case went before a second jury for a new trial on 9-11 May 1995. On this occasion the jury awarded to the pursuer a total sum of £165,530 as damages. Included in that figure was the sum of £35,000 as solatium for the past and £60,000 as solatium for the future. The sums assessed under the various other heads in the pursuer's claim differed in some respects from those which had been awarded previously, but no criticism has been made of the jury's award by either party on that account. It is the sum awarded for solatium which continues to give rise to controversy.
On this occasion the total award for solatium was £95,000, which is £25,000 less overall than that which had been awarded by the first jury. The sum which was awarded for the past was one half of the sum which the first jury awarded (£35,000 as against £70,000), while the award for the future was £10,000 more (£60,000 as against £50,000). On 18 May 1995 the defenders enrolled a fresh motion for a new trial on the grounds that the verdict of the second jury was contrary to the evidence and that the damages were excessive. Their motion for a new trial was heard on 19-20 December 1995 by an Extra Division (Lords McCluskey, Kirkwood and Abernethy). The argument which was presented to the court on this occasion was confined to the question whether the total award for solatium was excessive within the meaning of section 29(1) of the Act of 1988. On 7 February 1996 the Extra Division, Lord Abernethy dissenting, ( 1996 S.L.T. 631) refused the motion for a new trial. It is that decision which is now before your Lordships in this appeal.
It is very unusual in Scotland for a jury's award of damages to be challenged twice in the same action. If this motion for a new trial were to be allowed it would mean that the case would require to go before a jury for a third time on the issue as to the quantum of damages. It is also unusual for one of the judges in the Inner House to dissent from the decision of the majority on the question whether or not there should be a new trial. These features of the present case reveal a feeling of unease among practitioners in Scotland, which is reflected in Lord Abernethy's thoughtful and penetrating opinion, about the relationship between awards of solatium made by juries and those made by judges, especially as by far the greater number of awards of damages in contested cases are now made by the judges. Unease has also been expressed about the test which should be applied in order to determine whether a jury's award is excessive within the meaning of the Act. In order to set these concerns into their present context I must now outline briefly the statutory background.
The Statutory Background
When the Jury Trial (Scotland) Act 1815 was enacted a separate jury court was established in Scotland for the trial of such issues as might be referred to it by the Court of Session. In that Act, as Maclaren, Court of Session Practice (1916), p. 543 points out, there were no causes enumerated as specially appropriate for jury trial, but this defect was soon remedied by the Court of Session Act 1825. Among the causes which were enumerated by that Act were actions of damages for personal injuries. This category of causes appropriate for jury trial has been preserved by section 11(a) of the Act of 1988. In 1830 the jury court was abolished and its jurisdiction was transferred to the Court of Session. It was to a Division of that court that it had always been competent to apply under section 6 for a new trial on the ground of excess of damages. But the only remedy which the Inner House could provide under that section, if it held that there had been an excess of damages, was to order a new trial. That provision has been preserved by section 29 of the Act of 1988. Section 6 of the Act of 1815 also provided that an interlocutor granting or refusing a new trial was not to be subject to review by an appeal to the House of Lords. As I have already mentioned, it was not until the coming into operation of section 2 of the Administration of Justice (Scotland) Act 1972 that an appeal to the House of Lords against such an interlocutor became competent.
Subsection (2) of section 29 provides: "The Inner House on hearing an application under this section may, subject to section 30 of this Act and any act of sederunt, grant or refuse a new trial.' Section 30(3) provides that, where the court is of opinion that the only ground for granting a new trial is either excess of damages or such inadequacy of damages as to show that a new trial is essential to the justice of the case, it may grant a new trial restricted to the question of the award of damages only. What the Inner House cannot do–in sharp contrast to what is now competent in England under section 8 of the Courts and Legal Services Act 1990–is substitute for the sum awarded by the jury such sum by way of damages as it considers appropriate. The assessment of the damages to be awarded in a case which has been sent for jury trial remains therefore, in Scotland, a matter for the jury and not for the judges. The sole function of the judges is to review the jury's award under the limited jurisdiction which has been given to the Inner House by section 29 of the Act of 1988.
Landell v. Landell
In Landell v. Landell (1841) 3 D 819 the whole Court had occasion to consider the meaning, in the context of the statute, of the expression "excess of damages." The pursuer had obtained awards of damages from a jury in her action for wrongous imprisonment which, although well within the sum sued for, were clearly more than she ought to have received. The defenders applied for a new trial on the ground that the damages were...
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