Carol Anne Miller v Yum! Restaurants (UK) Ltd - Glasgow
Sheriff Court June [2009]
A pursuer can raise an action in the Court of Session for any
claim with a value in excess of £5,000 but they can also raise
higher value claims in the sheriff court.
If a personal injury claim is raised in the Court of Session it
will proceed in accordance with the personal injury rules that
impose a timetable on both parties. Often cases will reach a trial
within 12 months of being issued. The same rules currently do not
apply in the sheriff courts. The exception is Glasgow Sheriff
Court, which is running a personal injury pilot scheme.
Ms Miller raised a normal action at Glasgow Sheriff Court and it
was, by consent of both parties, included in this scheme. This
meant that the case was subject to case management conferences on a
timetable agreed by the judge and solicitors. The aim was to ensure
expeditious progress of the case.
However, it created a drawback for the pursuer - it is not
possible in the sheriff court to have the case determined by a
civil jury.
Ms Miller changed solicitors in the course of her action and her
new solicitors considered that the case should be sent to the Court
of Session, to be heard by a jury. Ms Miller's solicitors submitted
that she should be entitled to have her case sent to the Court of
Session, in order to exercise her 'right' to a jury trial. This
case was described as of great importance to Ms Miller personally.
It had impacted upon all aspects of her life. She would have the
assistance of junior and senior counsel in the Court of Session
and, while acknowledging the competence and capability of the
sheriff court to deal with the case, it was submitted that the
Court of Session rules would encourage proactivity, as well as
obliging parties to meet and discuss matters.
In response, the defenders challenged the suggestion that there
was a 'right' to jury trial, and also pointed out that the pilot
scheme was devised to provide for pro-activity, hands on case
management and open discussion in the sheriff court. An eight day
trial could be fixed within six months in the sheriff court.
Finally, while the injuries sustained were doubtless serious to the
pursuer, those in cases relied upon by Ms Miller were significantly
more serious or complex.
The sheriff considered that he had a wide discretion, but had to
take a commonsense view of whether, taking into account the
requirements of justice, it was appropriate to remit to the Court
of Session. Was the case important or difficult? Was there the
potential for increased delay or expense?
Considering the decision to use the sheriff court, and the pilot
scheme, the lack of change of circumstances since and the delay
inherent in any remit, and in spite of the severity of injury, the
sheriff held that remit was not appropriate. The availability of
jury trial added relatively little to the analysis, and any
positive factors were offset by the negative effect of the delay it
would cause.
Every motion to send a case to the Court of Session will be
considered on its own merits. However the option of a jury trial
will not entitle the pursuer to change courts - particularly where
nothing has changed since the initial decision to litigate in the
sheriff court.
Contributed by Lesley Allan