Hawksley v Fewtrell
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE BIRKETT |
| Judgment Date | 16 November 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J1116-1 |
| Court | Court of Appeal |
| Docket Number | 1951 H. No. 495 |
| Date | 16 November 1953 |
[1953] EWCA Civ J1116-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton
Lord Justice Birkett
Lord Justice Hodson
Counsel for the Appellant: MR H.V. LLOYD-JONES, Q.C., and MR L. HALPERN, instructed by Messrs T.D. Jones & Co.
Counsel for the Respondents: MR RICHARD ELWES, Q.C., and MR W.W. STABB, instructed by Mr T. MacDonald Baker.
This appeal arises out of a claim brought by Mr Harry Stephen Ronald Hawksley against two police officers for damages for false imprisonment and for malicious prosecution.
The case was heard before Mr Justice Finnemore and a jury on Thursday and Friday, the 16th and 17th April, 1953, and on Monday the 20th April the learned judge directed that judgment be entered for the Defendants.
The first, and the more important, point raised upon the appeal is that there was no verdict of the jury upon which judgment could be given.
It arises in this way: After the direction given to them by the Judge the jury retired at 3.35 on the Friday afternoon; they did not return to Court until 12 minutes past 6; by that time the Judge had left without, so far as we have been told, any intimation to the parties. The verdict of the jury, which was in favour of the Defendants, was taken by the Associate, after which he discharged the jury on the Monday morning Counsel for the Defendants applied for judgment. Mr Halpern, Counsel for the Plaintiff, opposed the application in those terms; "I oppose the application on this ground, my Lord. After a retirement of some 2½ hours the Jury returned to the Court and gave what, in my submission, was an informal verdict to the Associate. After that they were discharged. In those circumstances, I beg to move for a new trial inasmuch as that before your Lordship today there is no final formal verdict of a jury, and so far as I can see one cannot now be obtained, because that jury is no longer in existence."
Mr Halpern referred to a note in the Annual Practice under Order 36, Rule 39, and to the case of Fanshaw v. Knowles, which is reported in 1916 2 King's Bench Division at page 538, in regard to which the Judge said: "I know. I read it on Friday while the jury were out." I am not sure that the Judge meant that he had read the whole of the report of that case; it may be he meant he had read the note in the Annual Practice.
After hearing Mr Halpern, Mr Justice Finnemore said: "I do not think there is anything in the point at all. There was for a long time doubt whether the very strict rules which apply in the taking of a verdict from a jury in a criminal case applied in the same measure to a civil jury. The case to which reference has been made, Fanshaw v. Knowles, 1916 2 King's Bench Division, page 538, showed quite plainly that they did not, Quite apart from that, it has happened in many cases that a jury has deliberated for a very long time and that the Judge has not been present when the jury have come back, and it has been the practice for a long time that if they have given a proper, plain, straight-forward verdict, as in this case, with no qualifications and no point calling for legal argument, or anything of that kind, the verdict has been accepted as the verdict of the jury, and in due course, normally the next day, formal Judgment has been asked for and has been entered. That is what I propose to do here. Judgment will be entered for the Defendants."
Mr Lloyd-Jones, who appears for the Appellant upon this appeal, asks this Court to say that that judgment is wrong and that there must be a new trial. He was not able to refer us to any case in which it had been held that a verdict so given was of no effect, but he relied upon that which was said in the Court of Appeal in the case of Fanshaw v. Knowles to the effect that a verdict given, or taken, in the absence of theJudge is a privy verdict and is a nullity unless it is followed by a verdict given in open Court in the presence of the Judge.
The decision of the Court in the case of Fanshaw v. Knowles was that the rule that any separation of the jury after the Judge's Summing-Up in a criminal case invalidates their verdict does not apply to a civil case.
As the headnote shows, the history of the law as to separation of juries was considered. Mr Justice Darling had put questions to the jury and had left the Court before they answered them. They did not answer them all that evening, and they were told to attend again the next morning, when the Judge would be present. In the morning they gave further answers on which the Judge entered judgment for the Plaintiff. The Defendants' appeal was dismissed. It was argued that the verdict was bad in that the jury had been allowed to separate before giving their verdict.
Lord Reading, Chief Justice, at page 543 of the report, said: "We have had the advantage of an interesting and learned argument upon the subject. The defendant has urged that the same rule must apply in a civil trial on the other hand it has been argued for the plaintiffs that the old rule of law which would prevent the separation of the jury before they give their verdict after they have retired to consider it is one that no longer applies to civil trials; that the rigidity of the old rule has been relaxed in civil trials, just as it has been relaxed oven in criminal trials partly by custom, and recently by the Juries Detention Act, 1897. In Coke upon Littleton, 227b, it is stated that 'By the law of England a jury, after their evidence given upon the issue, ought to be kept together in some convenient place, withoutmeat or drinke, fire or candle, which some bookes call an imprisonment, and without speech with any, unlesse it be the bailife, and with him onely if they be agreed. After they be agreed they may in causes between party and party give a verdict, and if the Court be risen, give a privy verdict before any of the Judges of the Court, and then they may eate and drinke, and the next morning in open Court they may either affirme or alter their privy verdict, and that which is given in Court shall stand. But in criminall cases of life or member, the jury can give no privy verdict, but they must give it openly in Court.' it is clear, therefore, that at the time of this work being written there was a distinction to be drawn between civil and criminal cases. In the one case, that is in the civil trial, a privy verdict could be given, and then the jury were allowed to eat and drink and they could either confirm or alter that verdict, that is that privy verdict, when the verdict was given as a public verdict. In Blackstone's Commentaries, iii. 377, it is stated, dealing with verdicts between party and party, that 'A verdict is cither privy or public. A privy verdict is when the judge hath left or adjourned the Court; and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of Court: which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in Court; wherein the jury may, if theyplease, vary from their privy verdict. So that the privy verdict is indeed a more nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged.'"
The Chief Justice continued: "It appears,therefore, that the jury when they had once agreed could return an informal verdict called a privy verdict, and that when they had done that they were entitled to eat and drink, as is said in Coke upon Littleton, which was already a relaxation of the rigidity of the old rule; and in Blackstone's time he says that when they were agreed they gave their privy verdict in order to be delivered from their confinement, it seems, therefore, not only were they allowed to eat and drink if they had given their privy verdict, but in Blackstone's time they were no longer confined, and they could on the next morning, when they gave their public verdict, alter the privy verdict or affirm it as they pleased. Now that shows that when Blackstone's Commentaries were written it was clear that in civil trials juries were allowed to give a verdict after they had separated. The progress in the liberty afforded to juries is shown by the allowance of the release from confinement, which is stated in Blackstone, but not in Coke upon Littleton; and even in Coke upon Littleton a reference to the case of Saunders v. Freeman shows that after there had been a privy verdict the jury were then allowed to eat and drink and lie together. It appears to have been by custom that juries were allowed to do this. The words are 'and then the same juries for their case as is the custom to eat and drink together for them aforesaid and to lie together until the morrow aforesaid and then to give their verdict aforesaid openly before the aforesaid justices at Northampton.' So that going back to the time of Queen Elisabeth there had already existed some relaxation which is shown by the custom mentioned in Plowden and extended gradually until we get to the date of Blackstone's Commentaries."
At page 547 of the report the Chief Justice is shown as saying: "The conclusion to which I have come upon this point is that in civil trials the separation of the jury does not invalidate the verdict. I think that it is a practice which should be resorted to only in rare instances and where special circumstances demand it. The danger of allowing the separation is pointed out by Blackstone. It is a danger which none the loss exists in the present day. There are, of course, circumstances which make it necessary or desirable that the jury should return on the next day for the purpose of hearing a further direction from the judge, or perhaps of settling some point of controversy between the jury as to the evidence, or...
To continue reading
Request your trial