Scottish Court of Session Decisions

[1] This is an action of damages for personal injuries at the instance of William John Gunn. The defender is Mrs. Anne Newman. In his first conclusion the pursuer seeks damages of £500,000 for the loss, injury and damage which he alleges that he suffered as the result of an accident caused by the defender's negligent driving. The defender's liability has been established by summary decree and the matter in dispute between the parties relates to the quantification of damages. The pursuer's claim is made up of a number of elements, including loss of profits from a business in which he and his wife were partners at the time of the accident, damage to clothing and other items, and a claim for services rendered to him by his wife and her mother. Most importantly, however, among the heads of claim is solatium for pain and suffering resulting from the accident.

[2] By his interlocutor dated 29 January 2001 the Lord Ordinary repelled the defender's first plea-in-law and allowed issues. The defender has reclaimed and, put shortly, her contention is that, by allowing issues and thus paving the way for a jury trial, the Lord Ordinary acted incompatibly with her right, under Article 6 of the European Convention on Human Rights and Fundamental Freedoms, to a fair hearing in respect of the determination of her civil obligation to make reparation to the pursuer for his pain and suffering. Although the defender limits her contention in this way to the determination of her liability to pay damages for solatium, that particular claim is simply one aspect of the pursuer's wider claim for damages, the whole of which is, of course, brought in this action. The effect of the defender's argument is, accordingly, that, when the Lord Ordinary remitted the pursuer's action to probation, he should have allowed a proof in respect of the whole damages claim. The defender contends that, by allowing issues, the Lord Ordinary acted unlawfully in terms of Section 6(1) of the Human Rights Act 1998 ("the Human Rights Act"). This court should accordingly recall the Lord Ordinary's interlocutor and allow a proof.

[3] The relevant provisions on proof and jury trial are now to be found in Sections 9 and 11 of the Court of Session Act 1988 ("the 1988 Act") which are in inter alia these terms:

[4] The legislation does not spell out what is meant by "special cause" in Section 9(b) but it has long been regarded as settled that, in the words of Lord Shaw of Dunfermline in Taylor v. Dumbarton Tramways 1918 S.C. (H.L.) 96 at p. 108, "the special cause shown must manifestly be a cause special to the particular case that is being tried." Counsel for the defender accepted that, on that interpretation, the Lord Ordinary would not have been entitled to find "special cause" in this case. Counsel argued, however, that Section 9(b) now had to be interpreted in the light of Section 3(1) of the Human Rights Act which is in these terms:

When Section 9(b) was considered with this new canon of construction in mind, counsel submitted, the former settled interpretation fell away and the provision could now be read as permitting the court to allow a proof if there was a "substantial" or "important" cause for doing so. The need for the court in all cases to secure a hearing which was fair in terms of Article 6(1) was indeed a cause of this kind. So, the Lord Ordinary could and should have allowed a proof.

[5] As presented to us, the argument for the defender therefore comprised two elements: first, the contention that jury trial does not secure the necessary fair hearing to which a defender, such as the present defender, has a Convention right; secondly, the contention that, in order to secure that fair hearing by way of a proof, the court must re-interpret Section 9(b) of the 1988 Act in such a way as to permit a Lord Ordinary to allow a proof in all cases of this kind where a claim for solatium falls to be assessed. In paragraph 19 of his opinion issued on 19 December 2000 the Lord Ordinary rejected the second limb of the defender's argument on the basis that the ground advanced by the defender could not be special cause even if "one strain[ed] the language to the extent required by section 3 of the 1998 Act". He therefore could not do other than allow issues and, by virtue of Section 6(2) of the Human Rights Act, it was lawful for him to do so. In those circumstances the Lord Ordinary found it unnecessary to decide whether the allowance of issues would infringe the defender's right to a fair hearing under Article 6(1) and he expressed no view on the point.

[6] The Lord Ordinary noted, however, that the position might change if the defender were minded to seek from the court a declaration of incompatibility under Section 4 of the Human Rights Act. Subsections (1) and (2) of the section, which applies to this court, are in these terms:

Since the nature of any possible declaration had not been explored before him, in an interlocutor dated 19 December 2000, the Lord Ordinary appointed the defender, if so advised, to lodge within 28 days a minute setting out the terms of any declaration of incompatibility which she sought. The defender did not lodge such a minute, because counsel did not wish to appear to make any concession as to the argument about the interpretation of Section 9(b) which the Lord Ordinary had rejected. It was in these circumstances that, when the case called by order on 29 January 2001, the Lord Ordinary allowed issues. Under Section 5(1) of the Human Rights Act, the Crown is entitled to notice in accordance with the Rules of Court "where [the] court is considering whether to make a declaration of incompatibility". In paragraph 22 of his opinion, the Lord Ordinary recorded the submission by senior counsel for the defender that any intervention by the Crown would be appropriate only where the court was satisfied that the provision of primary legislation was incompatible with Convention rights. The Lord Ordinary added:

From this passage it appears that the Lord Ordinary took the view that, while he could decide the argument about the interpretation of Section 9(b) without giving notice to the Crown, he would have to give such notice if, the defender's argument on interpretation having been rejected, the defender then proposed to pursue a declaration of incompatibility in this process.

[7] Matters stood in this way in the hearing before us until the close of the submissions by Miss Milligan, junior counsel for the defender and reclaimer. She had dealt with both of the defender's arguments, on the failure of jury trial to meet her right to a fair hearing in terms of Article 6(1) and on the consequent need to re-interpret Section 9(b) of the 1988 Act so as to permit a Lord Ordinary to allow a proof and so avoid that unfair hearing. At this point Lord Osborne pressed her as to whether, if the court accepted the first argument but rejected the second, the court should then make a declaration of incompatibility under Section 4(2) of the Human Rights Act. This in turn led to discussion as to whether the issue of the interpretation of Section 9(b) and the issue of the incompatibility of that provision might not be so bound up with one another as to mean that, in substance, when determining the interpretation question the court was already engaged in part of the process of "considering whether to make a declaration of incompatibility ", with the result that the Crown was entitled to notice in terms of Section 5(1).

[8] At this point the court drew the attention of counsel to a report in that day's Times of the decision of a committee of the House of Lords on 7 March 2001 in R. v. A (Joinder of appropriate minister) The Times 21 March 2001. The appeal, which has not yet been heard, concerns Section 41 of the Youth Custody and Criminal Evidence Act 1999 and, in particular, the cross-examination of the complainant and the giving of evidence by the accused, who is charged with rape, about an alleged previous relationship between himself and the complainant. It appears from the report that the accused had won his appeal to the Court of Appeal, which had held that Section 41 did not preclude the cross-examination of the complainant or the giving of that particular evidence by the appellant. The Director of Public Prosecutions had appealed to the House of Lords and in the appeal he did not intend to ask the House for a declaration that Section 41 was incompatible with the Convention. For his part, counsel for the accused intended to argue that Section 41 could be "read down" so that it could be given effect in a way which was compatible with Article 6, but, if it could not, he also intended to invite the House to make a declaration of incompatibility. In that situation their Lordships decided to grant the petition of the Home Secretary for leave to be joined as a party in the appeal.

[9] In reaching their decision, the committee considered a number of issues which do not arise in this case but they also noted that the point in issue was one of general importance which was likely to affect other trials and so should be determined as soon as possible. In the present case, too, the matter raised by the defender affects many other cases and so, in our view, it should be determined as soon as possible. Their Lordships also agreed with senior counsel for the Home Secretary that it would be unsatisfactory if the appeal were begun without the Home Secretary but then had to be adjourned for notification to be given to him. The efficient way to proceed was to grant leave to the Crown at this stage and so to avoid that delay. The danger that delay and inefficiency will result, if the Crown are not involved at an appropriately early stage of proceedings where the court may have to consider whether to make a declaration of incompatibility, is illustrated by the events which have occurred in this case.

[9] Most importantly for present purposes, however, as reported by The Times, their Lordships observed:

In this passage Lord Hope of Craighead indicates what the purpose of the intervention of the appropriate minister under Section 5(2) is. It is not confined simply to arguing as to whether a court, which had in effect decided that a provision was incompatible with the Convention, should make a declaration in terms of Section 4(1). That would be, at best, a most limited and unconstructive role. Rather, the minister has an opportunity to address the court on the objects and purposes of the legislation in question and on any other matters which may be relevant. It appears to us that, applying that approach to the present case, the Scottish Ministers, who have the policy responsibility for our private law, should be given an opportunity to address the court on the objects and purposes of Sections 9(b) and 11 of the 1988 Act and on the interpretation of Section 9(b). In particular, we are satisfied that they should be given that opportunity at this stage, when the court has to consider whether those provisions really do infringe the defender's Article 6 rights or whether, if necessary by "reading down" Section 9(b), they are, or can be made, compatible with those rights. Having had an opportunity to consider the point and the report of R. v. A., senior counsel for both parties in effect accepted that this was appropriate. We have therefore decided to give notice under Section 5(1) of the Human Rights Act to the Lord Advocate, as representing the Scottish Ministers, and to the Advocate General, as representing the United Kingdom Government, who are responsible for our international relations, including compliance with the Human Rights Convention.

[10] In reaching that decision we do not forget that, by reason of Section 4(6)(a) of the Human Rights Act, any declaration which this court made would not affect the validity or continuing operation of Section 9(b) of the 1988 Act. Nor, by reason of Section 4(6)(b) of the Human Rights Act, would the declaration be binding on the parties to this case. Nevertheless, it appears to us that it would be unsatisfactory - and possibly productive of injustice - if the court were to hear only the parties at this stage and were, for instance, to reject the defender's argument on the interpretation of Section 9(b), only to find that, after notice had been given to the Crown, the court changed its mind on that point in the light of additional arguments presented by the Crown in a hearing about a declaration of incompatibility. Whether, given the role of the Crown as described by Lord Hope, similar considerations will apply in many, or even most, cases involving statutory provisions, we do not need to decide. It is enough to say that, in these proceedings, the submissions of the Crown in any hearing on incompatibility might well have a significant bearing on the two questions which are before the court in this reclaiming motion. It is therefore appropriate to give the Lord Advocate and Advocate General the opportunity to be joined as parties to the proceedings and to present argument at this stage.