Scottish Court of Session Decisions

[1] This action is the consequence of a fatal road traffic accident. The deceased was one of the drivers. She was the wife of the first, mother of the second and third and daughter of the fourth pursuers. The question which was raised at Procedure Roll was whether special cause existed for withholding the action from trial by jury. The cause is one in which there is a statutory entitlement to jury trial by section 11 of the Court of Session Act 1988, unless special cause can be shown in terms of section 9(b) of that Act.

History of the case

[2] The accident occurred on 6 December 1996. The deceased died the following day. There are no averments about the intervening period. A summons was signetted by the first pursuer on 22 July 1998. On 13 January 1999 the first pursuer obtained leave of the court to intimate this action to his and the deceased's children and to the deceased's father as connected persons. These children and the deceased's father sisted themselves as pursuers in the action by 9 March 1999. A plea of contributory negligence was taken against the deceased, somewhat improperly alluded to in condescendence 1 in the sentence "the children are seeking separate legal advice and representation because of the plea of contributory negligence taken by the defender's insurers". There was no reason for that averment referring to insurers either to be or remain in the pleadings. On 28 July 1999 a third party notice was served by the first defender upon the first pursuer as a result of that plea. There were sundry minutes of amendment thereafter and, by the stage that the cause reached the Procedure Roll, the pleas-in-law for the parties disclosed that the first pursuer sued the first defender. The second and third pursuers sued the first and second defenders. The fourth pursuer sued the first defender alone. The first defender sought to have sustained pleas of contributory negligence and apportionment in terms of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1940 and the third party also had a plea relating to apportionment. The first defender and third party also had pleas directed to relevancy and specification as well as pleas directed towards withholding the case from jury trial.

[3] On 2 February 2000 the Lord Ordinary appointed Notes of Argument to be lodged within 28 days. On 7 March 2000 the third party was allowed to lodge his Note of Argument. The first defender failed to lodge a Note of Argument. She proposed to lodge one at the Bar having previously intimated its terms to the other parties. Counsel for the first pursuer, supported by the other pursuers, moved the court to refuse to allow the Note of Argument to be received, to repel the first defender's preliminary plea and to deal with the matter upon the Note of Argument submitted for the third party.

[4] The first defender's Note of Argument adopted the arguments intimated by the third party, and sought to add thereto arguments relating to the first pursuer's averments of loss of support and personal services being lacking in specification. It also reformulated the third party's Note in relation to the complexity of the heads of damages and multiplicity of parties.

[5] Counsel for the first pursuer stressed that the requirement to lodge a Note of Argument was mandatory, that accordingly it should be complied with, particularly in cases of this kind, and that no indulgence should be shown to the first defender for her failure. He argued that it was important for the expeditious conduct of court business that such orders should be complied with and that there was in the present case no excuse for failure to do so.

[6] Counsel for the first defender accepted that there had been an oversight. He explained that when instructed he had devised and intimated his Note of Argument as soon as he could. That note merely amplified the position which the court would have required to consider at Procedure Roll in any event it merely adding to the third party's argument that the claims of the second and the third pursuers made the case complex, the additional argument that the pursuer's pleadings were also a complicating factor. The argument about multiplicity of parties and the specific claims were not new and that no particular difficulty would have been caused by the oversight.

Decision on the preliminary matter

[7] I decided to accept the late lodging of the first defender's Note of Argument in the particular circumstances of the present case. I agree with Mr McEachran that the provision is a mandatory one and ought to be complied with. However, when a question of dispensation arises the whole circumstances require to be considered. Because substantially the same argument was before the court in relation to the second and third pursuers and the fourth pursuer, it seemed to me that there would be little difficulty for a counsel of the experience of Mr McEachran in actions of reparation in dealing with the matter. I could not see that he would be substantially prejudiced in his presentation and the only result of my acceding to his demand that the first defender should not be permitted to participate in the proceedings would be to visit a penalty upon the first defender. Had the situation been that there was no note of any argument by any party before the court save those in the late Note of Argument, the situation might have been different. Since there was, however, such an argument before the court in any event I considered that it would be to the advantage of the court and the first pursuer if all counsel were able to participate fully in the discussion. As the argument progressed however, it became clear that special cause existed in any event for withholding the case from trial by jury on the points raised by the third party alone, having regard to the "cause" in which everyone represented in court was a participant.

[8] It was argued that the relationship between the defenders was unusual in that the first pursuer was also the third party and that although the accident itself was straightforward, complications arose on the various heads of damage. The pursuers' claims for loss of support and loss of services had a complex inter-relation and would be difficult to evaluate. The first pursuer and the deceased were earning similar sums. One of their children was at home, one was at home from time to time. The second pursuer claimed loss of support of about £40 every two months. The third pursuer was not specific as to the amount of support she received from the deceased's contribution to the family finances as opposed to the first pursuer's contribution.

[9] The first pursuer claimed loss of personal services by way of housekeeping, child care, cooking and washing, estimated to be valued in the region of £17,500 per year. No specification of that sum and no specification of the services was given, let alone any evaluation of each of the services. Nor was there any indication of what part the first three pursuers played in domestic chores. The first pursuer did not appear on the pleadings to make any allowance for the claims of the second and third pursuers. The second pursuer claimed for loss of personal services by way of housekeeping, cooking and washing. The third pursuer, in addition, claimed to have lost the benefit of services to the extent of approximately 7 hours per week preparing meals, 7 hours per week laundry and ironing, 8-10 hours per week household cleaning and 2 hours per week providing transport, i.e. a total of virtually a whole day out of the week of a full-time employee. The second and third pursuers put no figure upon the loss of these hours of services. The first pursuer's figure of £17,500 would appear to be an estimate based upon no specific allocation of time for services. The deceased would also have been providing for her own home keeping, laundry, cleaning and cooking and the valuation of these inter-related claims was a complicated matter about which there would be difficulty in charging a jury. The complications are added to by the necessity for the reference to the appropriate tables for the calculations of loss of support in the future and loss of services in the future once a basic amount is evaluated. There was a possibility of double counting and that made it unsuitable for a trial by jury (see Johnston v Clark 1997 S.L.T. 923). Further, and in any event, different bases are needed for each of the three parties, all of whose contribution would have to be assessed.

[10] The pursuers' claim under section 1(4) of the Damages (Scotland) Act 1976 for "distress, grief and loss of society". Distress is not identical to grief and loss of society and only applies in the case under section 1(4)(a) of the same Act.

[11] A major attack on the averments of the fourth pursuer was mounted. He also claims for "distress, grief and loss of society", but adds that he suffers from depression which required counselling and the taking of drugs. This was a matter of personal injury and did not necessarily follow from section 1(4) claims.

[12] Counsel referred to a variety of cases, although the only case which was authoritative was Graham v Associated Electrical Industries Ltd &c 1988 S.L.T. 81. By way of illustration of the points made, reference was made to McDonald v Chambers 2000 S.L.T. 454 (apparently for the proposition that actions of damages have now become very complicated) but also to several Outer House decisions in which the matter of special cause in the particular case was considered. These being illustrative only, there is no need to recite them.

[13] Senior counsel stressed the constitutional right to jury trial citing Graham v Paterson 1938 S.C. 124. Complexity of itself was not special cause nor were difficulties associated with particular types of action special cause. The special cause had to be in relation to the case itself. He argued that there was no particular difficulty in assessing the contribution of the deceased to the household on a general basis, such as was adopted in Brown v Ferguson 1990 S.L.T. 274 (although it requires to be noted that that was a proof and not a jury trial). Juries were an eminently suitable forum for determining the appropriateness of the values and of compensation. Proper directions would suffice. The presence of the need for multipliers was not a reason for holding that special cause existed. The issues upon which the jury could be invited to determine the merits and quantum would be simple to devise.

[14] The fourth pursuer argued that a situation similar to that noted in Boyce v Sherrie 1998 S.L.T. 611 existed in that he was prepared to say that only general medical evidence would be led at the trial. However as the judge in Boyce I observe that Boyce was a rather special case which differs from the present in that there were no averments in it which carried any implication of medical treatment and no medical evidence was to be led, whereas in this case it is at least an implication from the averments that anti depressant treatment was prescribed, which points to an effect beyond that of grief and sorrow and implies the suffering of personal injury.

[15] In my opinion the important factors special to this case are firstly, the number of parties; secondly, their varying interests in the provision of funds and services by the deceased; thirdly, the lack of specific averments of the important issues of the extent of services provided and any evaluation thereof in terms of time and money specifically related to the claims of each pursuer; fourthly, the position adopted by the fourth pursuer in relation to the third party causes a difficulty and as noted above his averment about suffering from depression may well take his claim further than one based solely on grief and loss of society; fifthly, the presence in the pleadings of the word "distress" and the level of ambiguity about what it is that the pursuers are putting forward as relevant to their section 1(4) claim; finally, the difficulty that I can perceive in charging a jury satisfactorily on the varying aspects of the case in relation to each pursuer and being certain that the jury were not confused by the various matters present in the claims.

[16] No offer at Procedure Roll was made to amend or amplify any of the averments challenged. The issues which were suggested by Mr McEachran as being appropriate for approval, make it plain that there would be a number of different and complicated matters upon which a jury would require to be directed, in particular on the loss of society, loss of support and loss of services claims for each and all of the various pursuers. His proposal would involve a file of some five different papers, all with different interlocking questions being put before a jury. I am not confident that a jury can be clearly directed, because such directions would require to be many and varied in relation to the claims for the first three pursuers, and would involve the jury apportioning whatever sums they discovered to be available in relation to loss of support and as the valuation of loss of services. The second and third pursuers have different interests not only between themselves but also from the first pursuer, although represented by one counsel and the same solicitors, in the matter of allocation of the available sums.

[17] It is because of all these complicating factors that I find that special cause has been shown to indicate that this case is not suitable for jury trial. In so deciding I am not to be taken as stating that cases with a number of pursuers or that cases involving claims for loss of services are per se unsuitable for jury trial. Nor would it necessarily follow that because the use of tables is now required in relation to quantifying a claim for future losses that that should necessarily be unsuitable for jury trial. On the other hand it is no answer to say that juries have to deal with the complicated matters of fact in criminal trials. They do not in a criminal trial usually require to do more than assess reliability and credibility and no question can arise about unsuitability. In a civil jury trial they require to assess damages. There are, however, in my opinion, as argued by the first defender and third party, too many complicating factors in this case to make a jury a suitable forum in the interests of justice to all parties and accordingly special cause exists for withholding the cause from jury trial. I shall allow a Proof before Answer.