As most readers are aware a pursuer with a personal injury
action in the Court of Session can elect to have his case heard
before a jury. The jury consists of 12 individuals selected from
the good people of Edinburgh. The jury are then responsible for
deciding whether liability has been established and if so how much
should be awarded in damages. Once the trial has begun it continues
on successive days until the jury has reached its verdict. The jury
hear all of the evidence and then the parties make speeches setting
out what they say has been established and the judge gives
direction on matters of law. He or she will normally also summarise
the evidence in fairly general terms but making it clear that it is
ultimately for the jury to decide what they accept as having been
proved.
There have always been fairly strict rules as to what a jury can
be given by the parties. They will often be given copies of
productions which are referred to by witnesses and during party
speeches they may be given some worked examples of wage loss or
pension loss. A jury are not obliged to give any justification for
the decision that they reach. The lack of justification makes
appeals against jury decisions difficult and the reward for a
successful appeal is another go at the case before a different
jury.
Jury awards tend on average to be higher than might be made by a
judge sitting alone, sometimes significantly so. They are therefore
popular with pursuers.
If a pursuer elects for a jury trial it is up to the defender to
persuade the court that there are special reasons why the case is
unsuitable. In deciding between proof (hearing before a judge
sitting alone) and jury trial the focus of the court is to identify
the forum which will "best secure justice between the
parties".
Traditionally opposing a motion for a jury trial has been a bit
of an uphill struggle for defenders but three recent decisions of
Lord Emslie and one of Lord Brodie perhaps suggest that there may
be greater hope for defenders avoiding jury trials in the
future.
As we will go on to see in a little more detail factors such as
the increasing complications involved in valuing personal injury
claims, particularly where multiple Ogden Table calculations are
required and the reduction in the detail of pleadings brought about
by the abbreviated personal injury procedure (Chapter 43) have
featured in the reasons given for judges preferring proof to jury
trial.
Another connection between the cases is that Simpson &
Marwick acted for the defenders in all four.