Scottish Court of Session Decisions

[1] This is an action by entitled relatives for damages for the death from asbestosis of the late Robert Benson. It is typical of many of its kind.

[2] Earlier this year, the defenders admitted liability and consented to trial of the action by jury. It then fell to the pursuer's agents to lodge in process the proposed issue for jury trial in accordance with Rule of Court 37.1(1). The solicitor advocate for the pursuers was not familiar with the drafting of issues. He lodged a proposed issue that contained a schedule of the damages sought by each pursuer. This schedule was in the form appropriate in this type of case, although it was defective in some points of detail such as the inclusion of heads of claim for which there was no record. The main problem was that the proposed issue failed to set out the basic question whether the death of the deceased was caused by the fault of the defenders. A motion was then enrolled on behalf of the pursuers for approval of the proposed issue.

[3] When the matter came before him, the Lord Ordinary, having in mind that liability was no longer in issue, held that the document lodged by the pursuers did, at least impliedly, contain a series of questions for the jury, that is to say questions as to the amounts of the individual and total awards, and could be described as a "proposed" issue for consideration, and if need be approval, by the court.

[4] The Lord Ordinary further held that if the proposed issue was not valid, he was nonetheless entitled on cause shown to order in terms of Rule of Court 37.1(2)(a) that the pursuers had not departed from their right to jury trial. He allowed the solicitor advocate for the pursuers to add to the proposed issue the question that it lacked and he approved the proposed issue in its amended form.

[5] The defenders have reclaimed against the decision of the Lord Ordinary on three grounds which we need not quote. The first and second grounds in substance raise the same point, namely that because the document lodged in process and headed "Proposed Issue" failed to contain the necessary question, it failed to comply with Rule of Court 37.1(1) and was not a proposed issue at all. On that view, the peremptory requirement that the proposed issue should be lodged within 14 days of the allowance of issues was not complied with (RC 37.1(1)) and the pursuers have forfeited their right to jury trial.

[6] These grounds of appeal seek a resolution of the case by means of proof before answer; but that proposal proceeds on an elementary misunderstanding. The parties' earlier agreement to jury trial presupposed that no issue of relevancy remained outstanding (Moore v. Stephen & Sons Ltd, 1954 SC 331, Lord Justice Clerk Thomson at pp. 334-335). If jury trial were not to be allowed in this case, the appropriate procedure would be by way of proof.

[7] The reclaiming motion is based on the merest technicality. In advancing it the defenders seek to take advantage of a chance opportunity to avoid a jury trial, to which they have already agreed, on the basis that the proposed issue fails to set out a question to which they have already conceded the answer. They do so, as counsel for the defenders candidly accepted, for the purpose of depressing the level of damages at which any settlement negotiations will be conducted.

[8] In our opinion, Lord Ordinary could not have allowed a jury trial on the proposed issue in its original form, because it omitted the essential question as to the defenders' liability. A jury can proceed to assess damages only if they have already returned a verdict in favour of the pursuer on the issue of liability. They can do that only if a question on that issue is put to them. In a case such as this the answer to the question is, of course, a formality. The jury must give an affirmative answer by direction of the presiding judge. Nevertheless, the jury must first give such an answer and the answer must be recorded on the Issue by the clerk of court as being their verdict (RC 37.9). The requirement that the jury must answer such a question is set out in a decision of a court of seven judges in Black v. North British Railway (1908 S.C. 444, at 451 and 455). It is in line with section 17(4) of the Court of Session Act 1988, which provides that "Where the jury in an action which concludes for damages finds a verdict for the pursuer they shall also assess the amount of the damages." It is also in accordance with long-established practice. That requirement was recently re-affirmed by the First Division in Mitchell v Laing (1998 SC 342, Lord President Rodger at 353A-C). That too was a case in which liability was admitted. We conclude therefore that in the form in which it was lodged the proposed issue was deficient and could not be approved by the court for the purposes of Rule of Court 37.1(1).

[9] It does not follow however that, by reason of the omission of the essential question, the document lodged was not a proposed issue at all. In our view the argument for the reclaimers on this point is unsound. Although the document was deficient, it was a proposed issue nonetheless; and the lodging of it signified the desire of the pursuers to have a jury trial on their respective claims. A proposed issue is always subject to the approval of the court (RC 37.1(6)). It may require to be adjusted, either in the light of an objection by the defenders or on the direction of the court, before it becomes the Issue authenticated for trial (RC 37.1(9)). If counsel for the defenders were correct in saying that a proposed issue that omits a material element is ipso facto invalid, such a proposed issue could never be subject to the process of adjustment that Rule of Court 37.1(9) contemplates.

[10] In the present case the solicitor advocate for the pursuers, on learning that counsel for the defenders objected to the form of the proposed issue, moved for leave to rectify the problem by adding to the proposed issue the question to which we have referred. The Lord Ordinary in the exercise of his discretion granted the motion. In our view that was the correct and proper way to proceed. The result was that the proposed issue was then in a form suitable for authentication as the Issue for trial.

[11] For these reasons we refuse the reclaiming motion.

[12] The third ground of appeal is to the effect that if the proposed issue was invalid, the Lord Ordinary erred in holding that nonetheless the pursuers had not departed from their right to jury trial (cf RC 37.1(2)(a)). It follows from our decision on the first and second grounds of appeal that this ground does not arise. We should say, however, that if it had arisen we would not readily have been persuaded that the Lord Ordinary erred in holding as he did. The decision of the Lord Ordinary appears to have been within the wide discretion confided to him by Rule of Court 37.1(2)(a). Moreover he was being asked to take a less extreme step than was taken in cases such as Wylie v. Wylie (1911 SC 1) and McGee v. Matthew Hall Ltd (1996 SLT 399) where the court allowed late lodging by pursuers who had failed to lodge any proposed issue within the prescribed time.