Scottish Court of Session Decisions

Lord President—The facts in this case are familiar to your Lordships. There was a jury trial in which the pursuer claimed damages alternatively at common law and under the Employers' Liability Act. The jury after a direction by the learned Judge returned a verdict for the pursuer under the statute, ignoring the common law liability and without saying yea or nay to the common law issue, but assessing the damages at a figure which was within the statutory limits.

The verdict was afterwards set aside on the ground of a misdirection by the learned Judge as to the statutory provision on which the question turned. A new trial then took place at which I presided. I urposely directed the jury to give special ndings as to the common law and statutory liability. The jury found for the pursuer on both issues and assessed the damages at a sum which was hot within the statutory limits. On a motion for a new trial your Lordships refused to disturb the verdict on the ground that the jury had given a verdict on the common law issue, and that there was a certain amount of evidence to support their finding. The pursuer now asks for the expenses of both trials.

It seems to me that when the miscarriage of the first trial is due to the misdirection of the Judge, there is no question of the pursuer's right to the expenses of the first trial as well as those of the second. I therefore think the motion now made should be granted. Our attention was called to two cases which I agree are not very easy to reconcile, and when an appropriate case arises it may well be that they ought to be reconsidered. Such a case, however, is not now before us. and I desire to reserve my opinion till the appropriate case occurs.

Lord M'Laren—I agree entirely in what your Lordship has said as to cases in which a new trial has been granted on the ground of misdirection on the part of the Judge; but I desire to reserve my opinion as to the expenses of a first trial where the verdict has been set aside on the ground that the evidence was insufficient to justify the verdict, because even if the pursuer recovers damages as the result of the second trial, it is his fault or error that he did not bring forward such evidence at the first trial as should satisfy the Court as well as the jury.

Lord Kinnear—I am rather inclined to think that the two cases cited, although at first sight they may appear to be conflicting, are yet distinguishable. My own view is that the question of expenses ought always to be decided with special reference to the circumstances of the particular case. But I agree with your Lordship that it is not necessary to distinguish between the two cases quoted to us for the purpose of disposing of the present application. The pursuer here got a verdict in the first trial, which was set aside because the Court thought that the law had not been satisfactorily explained by the learned Judge who presided at the trial. If the error could have been corrected without a new trial, and the consequent judgment had been an absolvitor, the pursuer must have borne the expense caused by his obtaining a wrong verdict. But because the verdict was set aside it did not follow that the pursuer was wrong and the defender right on the question of fact. The consequence of setting the verdict aside was a new trial; and the result of the second trial, when the law was fully explained, was the same as that of the first. On the question for a jury, therefore, the pursuer was found to be in the right all along, and if the expense of the first trial has been thrown away it is because the defenders insisted, as they were entitled to do, on a second trial, which has not altered the result. The pursuer therefore cannot be said to have caused the expense of a double trial. I think, therefore, that as the successful party he is entitled to the expenses of the litigation in the usual way.

Lord Pearson—I agree in the judgment proposed. In this case a second trial was granted on the ground that there had been a misdirection by the Judge who presided at the first trial. I think the result might be different if the verdict had been set aside not only on the ground of misdirection but on the further ground that the verdict was contrary to evidence. That would

Page: 606↓