Heasman v Jm Taylor & Partners
| Jurisdiction | Scotland |
| Judgment Date | 08 March 2002 |
| Docket Number | No 28 |
| Date | 08 March 2002 |
| Court | Court of Session (Inner House - Extra Division) |
EXTRA DIVISION
Temporary Judge T G Coutts QC
PracticeJury trialWhether trial by jury in civil proof compatible with right to fair hearingCourt of Session Act 1988 (cap 36), secs 9(b) & 11European Convention on Human Rights, art 6(1)1
The pursuer raised an action of damages against the defenders for personal injuries sustained in a road accident. The defenders admitted liability and stated a plea to the effect that the cause was unsuitable for jury trial in respect inter alia that it would not allow the defenders a fair hearing in terms of art 6 of the ECHR. Section 11 of the Court of Session Act 1988 provides that subject to sec 9(b) actions such as the present shall be tried by jury. The temporary judge before whom the case called reported the matter to the Inner House for an authoritative decision.
The defenders argued that a jury trial would not constitute a fair hearing before an independent and impartial tribunal and that if the court were obliged to order such a hearing by virtue of the legislation, declarator should be made that the legislation was incompatible with the ECHR. Six factors demonstrated this, being: the inability to lay before a jury comparable solatium awards and argue that any award granted should be in accordance therewith, unlike the position before a judge and which material could be reviewed on appeal; the jury had no experience of determining solatium and no meaningful guidance to assist them in doing so; the award made could be grossly unfair with no prospect of a successful appeal due to the restrictions placed upon the grounds of challenge to a jury award; the unfairness inherent in a jury trial could not be remedied by any appeal procedure; the defenders could approach a proof before a judge with a legitimate expectation of the parameters of award likely, and protect their position by tendering; and the jury did not give reasons for their decision. Section 11 did not in any event compel the court to remit the instant case to jury trial. In the event that it did, it was incompatible with the ECHR.
The pursuer argued that art 6 related to procedural fairness rather than fairness in general. Although if the results were so random a system might be put into question, this had not been established. At this stage, it was necessary for the defenders to show that they could not obtain a fair hearing. In Scots law, a reasonable award was one that was reasonable in the circumstances of the particular case, and it was untrue that trial by jury presented a lottery by contrast with judicial awards. Juries were accepted as part of the Convention jurisprudence, and there was no express requirement for reasons to be given in every case.
The Scottish Ministers submitted that the provisions of the 1988 Act could not be read down in the manner proposed by the defenders and that the Act and the ECHR could be read compatibly.
Held (1) that in light of the legal framework and the possibility of appeal, assessment of solatium by a jury did not constitute a contravention of art 6(1) of the ECHR; (pp 336I, 348AB, 350G); (2) that the provisions of the Court of Session Act 1988 relating to mode of inquiry were ECHR compatible (pp 341B, 348H); and cause remitted for the allowance of issues.
Opinion (1) (per Lord Hamilton) that a failure to give fuller directions on damages might in some circumstances be incompatible with the ECHR (pp 346C347B); (2) (per Lord Johnston) that the issue of fairness could only be resolved following the jury trial (p 350GH).
Matthew Heasman raised an action of damages against J M Taylor & Partners seeking damages for personal injuries sustained in a road accident. Liability having been admitted, the defenders opposed the pursuer's motion for issues on the basis that a jury trial would be incompatible with their right to a fair hearing under art 6 of the European Convention on Human Rights. On 26 October 2001, the temporary judge (TG Coutts QC) reported the case to the Inner House on the defenders' plea to incompatibility.
The cause called before an Extra Division, comprising Lord Coulsfield, Lord Johnston and Lord Hamilton for a hearing on 8 to 11 January 2002.
Cases referred to:
Allan v ScottSC 1972 SC 59
Brown v StottSC 2001 SC (PC) 43
Currie v Kilmarnock and Loudoun District CouncilSC 1996 SC 55
Duffy v Kinneil Cannel & Coking Coal Co LtdSC 1930 SC 407
Girvan v Inverness Farm Dairy (No 1)SC 1994 SC 701
Girvan v Inverness Farm Dairy (No 2)SC 1998 SC (HL) 1
Graham v PatersonSC 1938 SC 119
Gunn v NewmanSC 2001 SC 525
Hadjianastassiou v GreeceHRC Series A No 252-A (1992); 16 EHRR 1293
Heil v RankinELR [2001] QB 272
Helle v Finland (1997); 26 EHRR 159
Hewitt v West's Gas Improvement CoSC 1955 SC 162
Hiro Balani v SpainHRC Series A No 303-B (1994); 19 EHRR 566
Johnston v IrelandHRC Series A No 112 (1986); 9 EHRR 203
Kostovski v The NetherlandsHRC Series A No 166 (1989); 12 EHRR 434
Landell v Landell (1841) 3D 819
McCallum v Paterson (No 1)SC 1968 SC 280
McCallum v Paterson (No 2)SC 1969 SC 85
McGinley v PacittiSC 1950 SC 364
McGregor v Webster's Executors 1976 SLT 29
McLeod v British Railways BoardSC 2001 SC 534
Montgomery v HM AdvocateSC 2001 SC (PC) 1
O'Brien's Curator Bonis v British Steel plcSC 1991 SC 315
Open Door Counselling Ltd and Dublin Well Woman v IrelandHRC Series A No 246 (1992); 15 EHRR 244
R v Belgium Appln No 15957/90 (1992); 72 DR 195
R v Secretary of State for the Environment, Transport and the Regionsex parte
Alconbury Developments LtdWLR [2001] 2 WLR 1389
Rantzen v Mirror Group Newspapers (1986) LtdELR [1994] QB 670
Ruiz Torija v SpainHRC Series A No 303-A (1994); 19 EHRR 553
Sandison v Graham Begg LtdSC 2001 SC 821
Saric v Denmark Appln No 31913/96; ECHR 2nd February 1999 (unreported)
Scott v MusialELR [1959] 2 QB 429
Simpson v Harland and Wolff plcDNI [1988] NI 432
Sims v William Howard & Son LtdELR [1964] 2 QB 409
Taylor v Dumbarton Tramways Co Ltd 1918 SC (HL) 96
Thompson v Commissioner of Police of the MetropolisELR[1998] QB 498
Tolstoy Miloslavsky v United KingdomHRC Series A No 323 (1995); 20 EHRR 442
Traynor's Executrix v Bairds & Scottish Steel LtdSC1957 SC 311
Van de Hurk v The NetherlandsHRC Series A No 288 (1994); 18 EHRR 481
Von Mehrer's Curator Bonis v Wood 1966 SLT (N) 28
Walker v Pitlochry Motor CoSC 1930 SC 565
Ward v JamesELR [1966] 1 QB 273
Textbooks referred to:
Kemp and Kemp, Quantum of Damages
Lester and Pannick, Human Rights Law and Practice, paras. 4.6.28 & 4.6.39
McEwan and Paton, Damages
Walker, Damages
At advising, on 8 March 2002
LORD COULSFIELD[1] This is an action of damages for personal injury. The pursuer was involved in a serious road accident on 10 March 1998 while riding his motorcycle. He sustained extensive injuries and in the present action, which was commenced in the autumn of 2000, he sues for 500,000 as damages. Liability is admitted. It is not disputed that the pursuer's injuries were very serious, although the defenders do make averments about a fracture to the pursuer's kneecap sustained in a fall on 8 January 2000 and aver that in the future the pursuer will be able to return to work. It is clear, however, that the pursuer has a substantial claim for solatium.
[2] The defenders have stated a plea to the relevancy of the pursuer's averments in regard to the quantum of the claim but that plea did not play any part in the argument before us. The case came before the Inner House because of the defender's second plea which is in the following terms: The cause being unsuitable for jury trial in respect that it would not allow the defenders a fair hearing in terms of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms et separatim lack of specification in the pursuer's averments, issues should not be allowed.
[3] On 26 October 2001 the case came before Temporary Judge T G Coutts, QC. The Temporary Judge had previously heard arguments on the same point in other cases which had been settled before the point could be fully dealt with, and he agreed to report this case to the Inner House so that the question raised by the defenders' second plea in law could be authoritatively decided. However, in so far as the plea raises a question of specification that did not form part of the argument before us.
[4] Section 11 of the Court of Session Act 1988 provides that, subject to sec 9(b) certain actions (the enumerated causes) shall be tried by jury. An action of damages for personal injury is one of the enumerated causes. Section 9(b) provides that such an action may go to proof if parties agree or if special cause is shown. It has been well established for many years that special cause means a cause special to the particular case. It was plain from the outset that there is nothing about the circumstances of this particular case which can be regarded as special or unusual as compared with other actions of damages for personal injury. The defenders accepted that, if their plea was successful in this case, the consequence would be that virtually every such case would be deemed to be unsuitable for jury trial. The defenders submitted, however, that the effect of art 6 of the Convention was that jury trial would not constitute a fair hearing before an independent and impartial tribunal. They further contended that if the court were to hold that it was obliged by public general legislation to send the case to jury trial, a declaration should be made that the legislation was incompatible with the Convention.
[5] Counsel for the defenders submitted that the unfairness of procedure by jury trial could be derived from six factors taken together. Firstly, at a jury trial, both parties were prevented from laying before the court comparable cases and arguing that any award of solatium should be in line with the awards made in such cases: at a proof before a judge, on the other hand, comparable cases could be considered and the decision could be...
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