On 8 June, the Inner House of the Court of Session in Edinburgh pronounced its opinion on the joint appeals of Kirsty May Hamilton v Ferguson Transport (Spean Bridge) Ltd and Gilbert Dennis Thomson v Dennis Thomson Builders Ltd.
At first instance in Hamilton, a jury awarded £80,000 for loss of society to the husband of 50-year-old Caroline Hamilton, who was killed in an RTA. The court also awarded her 17-year-old daughter £120,000 for loss of society. In Thomson, the jury awarded £90,000 to the father of a 26-year-old man killed in an explosion at his place of work. As is usual practice in Scotland, the juries were provided with no guidance on the appropriate level of award. They were given the usual ‘top line’ figure in the pursuer’s issues (i.e. note of matters to be considered), but no further guidance.
Following the decisions in Hamilton and Thomson, the defenders enrolled a motion (i.e. application) for a new trial in response to the large jury awards for loss of society. As both motions raised similar considerations, they were heard together. In addition, because the motions gave rise to important matters of principle and practice in relation to the conduct of civil jury trials, an enlarged five-judge bench was convened, consisting of the Lord President of the Court of Session, Lord Hamilton, who provided the principal opinion, and Lords Eassie, Clarke, Emslie and Brodie, who supported it.
The defenders argued on appeal that the jury awards in the immediate cases (and in general) were excessive and uncertain. They also argued that the guidance on levels of damages that could be given to a jury was too restrictive. The juries had been told to make reasonable and moderate awards, but only in the context of having been told the ‘maximum’ award they could make. It was claimed by the defenders that this had affected the juries’ deliberations.
The defenders also argued that there was a risk of a disproportionately wide range of awards stemming from use of juries in Scotland. Examples from other jurisdictions were provided, including Canada, where awards to quadriplegics for non-pecuniary loss have been capped.
European Convention on Human Rights
The defenders further claimed that the trials, conducted without judicial guidance to the juries on levels of damages, involved an infringement of Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights, in that the state had unfairly infringed the defenders’ enjoyment of their right of property. They also argued that their right to a fair trial in terms of Article 6(1) of the ECHR had been infringed, given the lack of guidance provided to juries in Scottish civil actions.
In his judgment, the Lord President rejected the arguments that there had been an infringement of A1P1. There was no direct infringement by the state, as the actions involved the private rights and obligations of parties.
With regard to the A6(1) argument, the Lord President gave an interesting commentary on the case of Heasman v JM Taylor , in which the Extra Division of the Court of Session rejected a contention that civil jury trials were incompatible with the ECHR. He noted that, following the decision in Heaseman, the European Court gave further consideration to the use of jury trials (albeit in relation to criminal matters) in the case of Taxquet v Belgium , which emphasised the importance of the framework and guidance provided to juries prior to deliberation.
Absence of direction
In Hamilton and Thomson, the Lord President held that “the absence of directions about sums awarded in comparable cases is a less than satisfactory aspect of civil jury trials […] significantly increas[ing] the risk that the award will be arbitrary […] The time has, in my view, now come for this court, in furtherance of Convention Jurisprudence […] to set a framework for civil juries against which they can address levels of damages.”
With regard to guidance, the Lord President’s opinion was that the current system of providing a ‘top line’ figure on the pursuer’s note of issues should be changed to avoid adversely influencing the jury. To consider whether the original awards were excessive, he used the test of whether “no reasonable jury properly directed could have assessed damages at the sum in question,” recognising that it is difficult to reconcile judge and jury awards for loss of society, but that this balancing exercise had to be undertaken. Priority should not be given to either class of award.
Referring to the recent spate of high jury awards (e.g. Nimrod, Strang, Warnock), the Lord President stated that each case turns on its own facts but commented that these awards all suffered from lack of judicial guidance on the appropriate level. Of note, however, was his comment that the recent judicial award in Bellingham v Todd  undervalued the claim and should be treated with extreme caution. This case saw two young children awarded £25,000 and their father £15,000.
In summary, the Lord President stated that he was satisfied that both awards in Hamilton were excessive, as well as that in Thomson. While noting the strong father/son relationship in Thomson, he stated that there was no special feature that warranted an award of £90,000. A new trial in each case was therefore allowed.
The Lord President also stated that lack of judicial guidance to juries is an unsatisfactory feature of the Scottish system and should be changed. While he provided no definitive opinion on how this should be achieved, he appeared to favour the defender counsel’s proposal that, at the conclusion of the evidence, the jury should be removed, with both sides addressing the judge on their recommended awards. The judge would then suggest to the jury the range within which an award may justifiably lie. Counsel could then themselves address the jury on the figures that they maintained were appropriate but could not cite authority. Although the Lord President recognised that the changes would involve uncertainties in the early years, these would diminish over time.
The Lord President’s opinion provides some comfort to defender practitioners in Scotland. His recognition that lack of guidance could lead to arbitrary and excessive decisions is welcomed, as are the directions for new trials in the cases of Thomson and Hamilton. The outcome of these is keenly awaited. One note of caution, however, came in the reference to the claims in Bellingham being undervalued. The real impact of this opinion is yet to be seen; as conceded by the Lord President, there will be uncertainties in early judgements and decisions which, it is anticipated, will decrease over time. What is hoped, however, is that this opinion, together with future decisions, will assist in providing some form of clarification for defender solicitors and their clients.
Once again: watch this space…
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