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Heasman v. J.M. Taylor & Partners [2002] ScotCS 63 (8th March, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Coulsfield

Lord Johnston

Lord Hamilton

A2703/00

OPINION OF LORD COULSFIELD

in the cause

MATTHEW HEASMAN

Pursuer;

against

J.M. TAYLOR & PARTNERS

Defenders:

_______

Act: McEachran, Q.C., Clark; McKay & Norwell, W.S. (Pursuer)

Alt: Jones, Q.C., L.J. Milligan; Simpson & Marwick, W.S. (Defenders): R.W.J. Anderson, Q.C.; R. Henderson (Lord Advocate on behalf of Scottish Ministers)

8 March 2002

This is an action of damages for personal injury. The pursuer was involved in a serious road accident on 10 March 1998 while riding his motorcycle. He sustained extensive injuries and in the present action, which was commenced in the autumn of 2000, he sues for Ł500,000 as damages. Liability is admitted. It is not disputed that the pursuer's injuries were very serious, although the defenders do make averments about a fracture to the pursuer's kneecap sustained in a fall on 8 January 2000 and aver that in the future the pursuer will be able to return to work. It is clear, however, that the pursuer has a substantial claim for solatium.

The defenders have stated a plea to the relevancy of the pursuer's averments in regard to the quantum of the claim but that plea did not play any part in the argument before us. The case came before the Inner House because of the defender's second plea which is in the following terms:

"The cause being unsuitable for jury trial in respect that it would not allow the defenders a fair hearing in terms of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms et separatim lack of specification in the pursuer's averments, issues should not be allowed."

On 26 October 2001 the case came before temporary judge T.G. Coutts, Q.C. The temporary judge had previously heard arguments on the same point in other cases which had been settled before the point could be fully dealt with, and he agreed to report this case to the Inner House so that the question raised by the defenders' second plea in law could be authoritatively decided. However, in so far as the plea raises a question of specification that did not form part of the argument before us.

Section 11 of the Court of Session Act 1988 provides that, subject to section 9(b) certain actions ("the enumerated causes") shall be tried by jury. An action of damages for personal injury is one of the enumerated causes. Section 9(b) provides that such an action may go to proof if parties agree or if special cause is shown. It has been well established for many years that "special cause" means a cause special to the particular case. It was plain from the outset that there is nothing about the circumstances of this particular case which can be regarded as special or unusual as compared with other actions of damages for personal injury. The defenders accepted that, if their plea was successful in this case, the consequence would be that virtually every such case would be deemed to be unsuitable for jury trial. The defenders submitted, however, that the effect of Article 6 of the Convention was that jury trial would not constitute a fair hearing before an independent and impartial tribunal. They further contended that if the court were to hold that it was obliged by public general legislation to send the case to jury trial, a declaration should be made that the legislation was incompatible with the Convention.

Counsel for the defenders submitted that the unfairness of procedure by jury trial could be derived from six factors taken together. Firstly, at a jury trial, both parties were prevented from laying before the court comparable cases and arguing that any award of solatium should be in line with the awards made in such cases: at a proof before a judge, on the other hand, comparable cases could be considered and the decision could be reviewed on appeal as against that material. It could not be guaranteed that the result in a jury trial would be fair. Secondly, the jury had no experience of determining solatium, a factor which could be adverse to the pursuer as much as to the defender, for example if the jury were unsympathetic to claims based on psychological damage. The jury received no meaningful guidance to assist them. Thirdly, it was possible that an award could be grossly unfair without there being any prospect of a successful appeal. That followed from the restrictions placed upon the grounds of challenge to a jury's award as explained, most recently, in Girvan v. Inverness Farmers Dairy 1998 SC (HL) 1 (for convenience, this decision is referred to as Girvan No. 2, since there was an earlier decision of the Inner House in the same case, reported at 1994 S.C. 701). Fourthly, the unfairness inherent in a jury trial could not be remedied by any appeal procedure. This again followed from the decision in Girvan No. 2 and other similar cases. Fifthly, the defenders could approach a proof before a judge with the legitimate expectation that an award would fall within the well-understood parameters for awards in similar cases, so that it was open to the defenders to protect their position by making a tender. Legitimate expectation was an aspect of fairness in judicial proceedings. Sixthly, the jury did not give any reasons for its decision and that was contrary to the requirements implied by Article 6. In addition to Girvan supra, reference was made to McGinlay v. Pacitti 1950 S.C. 364; Currie v. Kilmarnock & Loudon District Council 1996 S.C. 55 and McGregor v. Webster's Executors 1976 S.L.T. 29. It was submitted that the position in Scotland could be contrasted with the position in England where it was recognised that the amount of an award of general damages for pain and suffering was the result of the application of a conventional system of assessment designed to secure fairness between pursuer and pursuer and defender and defender. Reference was made in this connection to Sims v. William Howard & Son Limited [1964] 2 Q.B. 409 and Ward v. James [1966] 1 Q.B. 273. The test for interfering with a jury award was different from the test for interfering with a judge's award, which was another source of unfairness. With regard to the requirement that reasons be given, reference was made to Hadjianastassiou v. Greece (1992) 16 E.H.R.R. 1293, Van de Hurk v. The Netherlands (1994) 18 EHRR 481 and Hiro Balani v. Spain (1994) 19 E.H.R.R. 566. Reference was also made to Helle v. Finland (1997) 26 E.H.R.R. 159 and Ruiz Torija v. Spain (1994) 19 E.H.R.R. 553. Counsel also referred to the discussion of the problems of jury trial appearing in Lord Justice Auld's review of criminal Jury Trials in England. On the specific question of the giving of reasons in jury trials, reference was made to Saric v. Denmark (Application 31913196; 2/2/99) and to R. v. Belgium (Application 15957190; D.R. 72 p. 195). There was also reference, with regard to the question of the test to be applied in the application of Article 6 at a pre-trial hearing, to Open Door Counselling and Dublin Well Woman v. Ireland (1992) 15 E.H.R.R. 244 and Johnston v. Ireland (1986) 9 E.H.R.R. 203.

Counsel further submitted that section 11 of the Court of Session Act 1988 did not compel the court to remit this cause to jury trial. Section 9 permitted the Lord Ordinary to allow a proof if special cause was shown. There was authority to the effect that "special" must be interpreted as special to the particular case, as was held in Walker v. Pitlochry Motor Company 1930 S.C. 565 and Taylor v. Dumbarton Tramways Company 1918 S.C. (H.L.) 1996. However, in the light of the Human Rights Act, the 1988 Act had to be read, as far as possible, in conformity with the requirements of the Convention. The word "special" could be read simply as meaning "substantial" and it could be said that, even though the unsuitability of jury trial might appear in any case in which solatium was claimed, nevertheless it was a substantial cause justifying a refusal of jury trial. As a last resort, the defenders would argue that a declaration should be made that the provisions of the 1988 Act were incompatible with the Convention.

Senior counsel for the defenders refined the argument in certain respects by emphasising that the defenders' complaint was not that juries awarded too much, even if a view to that effect might be part of the defenders' motivation for challenging jury procedure. The complaint was that the existing law and practice in the Court of Session in regard to jury trials does not amount to a controllable and fair judicial procedure and therefore is incompatible with Article 6.1. Article 6, he accepted, is to do with procedural fairness rather than substantive law, but the factors relied on by the defenders were factors affecting procedural fairness and comparison was made with procedure at proof as providing a paradigm of fair procedure against which to judge a jury trial. The functions of a judge at a proof and the jury at a trial were identical both in regard to factual issues and to solatium. The basic rule was that a person was entitled to solatium for pain and suffering and he would not quarrel with the formulation of the rule regulating the assessment of solatium stated in McCallum v. Paterson (No. 2) 1969 S.C. 85. It must be remembered, however, that Parliament had not introduced jury trial in order to provide, in some way, an element of public opinion to be taken into account in regard to damages. The reasons could be seen in Walker v. Pitlochry Motor Co. 1930 S.C. 565 and Graham v. Paterson 1938 S.C. 119; relative finality was the fundamental one. Even in 1954, as Walker on Damages showed, solatium was a conventional figure and the Scottish understanding of solatium was in line with what had been said in Ward v. James supra. It was odd that, if jury trial was to be regarded as a constitutional right, it might be a matter of chance whether a case went to a proof or jury trial. The jury was simply an alternative decision maker. The fact that awards were conventional in Scotland as much as in England was shown by Alan v. Scott 1972 S.C. 59 and O'Brien's Curator Bonis v. British Steel 1991 S.C. 315 (Lord Hope at 321). In Girvan v. Inverness Farm Dairy (No. 1) 1994 S.C. 701 the first question asked had been what would be the highest award for a case of paraplegia. The result was that where a judge was determining solatium the parties were entitled to propose a suitable award and to justify it by reference to comparable cases. To do that in a jury trial would equally not be usurping the functions of the jury. The first five factors referred to were interwoven but it might be important to pay some attention to unpredictability; see Tolstoy Miloslavsky v. U.K. (1995) 20 EHRR 442. The question was not whether proof was a fairer method of determining damages than jury trial but whether jury trial was in itself unfair. As regards the giving of reasons, the requirement of European jurisprudence was that litigants were entitled, as a matter of fairness, to be given an understanding of the process by which the decision-maker had determined their rights. In some procedures that would be self-evident but, in the determination of solatium, the result told nothing about what the jury had accepted or rejected. The problem might perhaps be met by putting particular questions in the issue, but there were insuperable problems in focusing questions at the stage at which it would be necessary to do so, that is at the closing of the record. It was difficult to justify the proposition that one or more lay judges should not have to give reasons. Proportionality was not a relevant consideration because in this type of process failure to give weight to the reasoning of the tribunal was fundamental to the fairness of the procedure as a whole. Further, the European court had weighed competing rights against Convention rights in three classes of case, namely, where they were directed to do so by the Convention: where two or more Convention rights conflicted: and where the court was proceeding on a declaration of an implied right as a component of an express right, as for example the right of silence was inferred from the right to a fair trial. There had to be a legitimate aim to justify the approach of proportionality but the pursuers had not proposed any such aim. Expediency was not such an aim.

The argument for the pursuers began by drawing attention to a number of general factors. It was submitted that the case was concerned with an alleged violation of human rights not with the general merits of a system of trial by jury. Article 6 was not about fairness in general but about procedural fairness, but the defenders' submissions were not limited to questions affecting Convention rights. It might be accepted that if a system were so much out of control that the results which followed were random there might be a breach of Article 6 but there was no empirical evidence of such a situation and the arguments presented by the defenders did not establish it. There was no jurisprudence relating inconsistency of decision to the Convention. Further, as regards some of the points made, such as the impossibility of allowing awards in similar cases to be put to the jury, the question was one of practice, not of a rule of law. Secondly, it was submitted that if the question whether or not to allow a jury trial was to be raised at this stage, the defenders required to show that they could not get a fair hearing. Cases such as the Dublin Well Woman case and Johnston v. Ireland raised issues of standing, which was not the proper test at this stage. Reference was also made to Montgomery v. H.M. Advocate 2001 SLT 37 and Alconbury Developments v. The Secretary of State 2001 UKHL 23. Much of the defenders' submissions went on the basis that there was de facto in Scotland a conventional system for the awarding of damages. It was accepted that there was a "culture" of considering other awards but it was wrong in law to say that there was any form of tariff. The law remained that a reasonable award was an award reasonable in the particular case. The English approach, based on a kind of tariff was different. The decision in Heil v. Rankine [2001] QB 272 illustrated the consequence of the application of the English system, namely that it had been found necessary to increase the general level of damages across the board by 20%. That was an intervention by the Court of Appeal in an odd and unjudicial way to upgrade the level of damages awarded. It was therefore unsound for the defenders to rely on what judges were doing, in England, as if that practice in some way provided a fair or intrinsically superior standard. Much of the defenders' submissions went on the implicit basis that judges' awards were right and juries were wrong. That, however, was not in accordance with the law as exemplified by McLeod v. British Railways Board 2001 S.C. 534 at 540 and Girvan supra in 1996 S.C. 134. The idea that jury trial was a lottery was a myth. The system had been investigated by the Strachan Committee which had not recommended that it should be abolished (Civil Jury Trials in Scotland: Cmd. 851, 1959). The court had to look at the fairness of the proceedings as a whole, bearing in mind the pleadings, the issues, the juror's oath and the instruction given in the charge. Such decisions as there had been in Scotland so far did not support the defenders' argument: reference was made to Gunn v. Newman, 2001 S.C. 525, McLeod v. British Railways Board supra and Sanderson v. Graham Begg Limited 2001 S.C. 821. There was nothing in the decided cases to show that jury awards were inconsistent with one another. The only point which might really engage Article 6 was the point concerning reasons. As regards the absence of comparative material, both parties were on an equal footing: but even if there were unpredictable awards, there was nothing in the Convention to render that unlawful. There was no evidence that a jury's lack of experience had any material effect and the fact that a jury consisted of 12 people chosen at random was an advantage. It was exaggerated to say that there was no control over juries' verdicts because there could be a successful appeal when there was a gross injustice. There was nothing in the Convention which supported the defenders' complaint that they could not lodge a valid tender. As regards the question of reasons, the Convention jurisprudence recognised that there was no requirement for reasons in every case: see Saric v. Denmark, R. v. Belgium and Tolstoy v. U.K. In an ordinary case it should be more or less self-evident what evidence had been accepted by the jury. There were serious practical difficulties in requiring a statement of reasons from a jury. This in effect was an attack on the jury system throughout Europe. The test of proportionality could properly be applied since the right to reasons was not an express right under the Convention. The question of incompatibility would be addressed by counsel for the Scottish Ministers but the pursuers would observe that the word "special" in the 1988 Act could not be given a meaning the effect of which was not special or general. Senior counsel for the pursuer stressed that it would be difficult to say what reasons a jury could give beyond saying that a certain amount was in their view appropriate as an award: even judges gave little more. If there was a need to obtain specific findings, the Rules of Court already provided for specific questions to be put to the jury. On the statistics, very few cases actually went to jury trial so that parties were perfectly well able to settle when there was a jury trial. In Scotland, unlike the position in England, there was a limit on the total claim provided by the sum sued for and counsel would not want to land their clients with a new trial and therefore would act responsibly in fixing that amount. The argument that there was some kind of tariff system operating in Scotland was not made out. Juries did offer participation of the public, which might be a remedy for the situation which had arisen in England where the Court of Appeal and the Law Commission had required to deal with ossification of awards. Many of the defenders' arguments disappeared when it was appreciated that the fairness of jury awards was not to be judged by a simple comparison with judge awards. The Convention jurisprudence accepted juries as part of the national legal framework.

Counsel for the Scottish Ministers, who appeared in terms of section 5 of the Human Rights Act, submitted that it was impossible to read down the provisions of sections 9, 11 and 29 of the 1988 Act in such a way as to be compatible with the Convention if it were interpreted as prohibiting jury trial. However, it was submitted that there would be no question of making a declaration of incompatibility because the defenders had failed to demonstrate that there was any primary legislation which was incompatible with Article 6, whatever other points might have been made. The Ministers' view was that if there was any merit in any criticism of current procedure in jury trials that did not warrant a declaration of incompatibility which should only be made where it was impossible to comply both with statute and with the Convention. The defenders' real final position had been that the present procedure and practice was inherently unfair and their real complaint was that juries awarded too much solatium. It had been pointed out in Girvan No. 2 that there were difficulties about changes in practice but it did not follow that such changes could not be made.

From the foregoing relatively brief summary of an extensive argument it is evident that the discussion before us ranged over a wide variety of topics connected with jury trials not all of which are necessarily relevant to the issue which has to be decided at this stage. Since the defenders' argument is founded entirely on Article 6.1, it seems to me to be logical to begin by looking at such jurisprudence as already exists in Europe with regard to the compatibility of jury trials with the Convention. That material is relatively limited.

Article 6.1 provides that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Article 6.1 has been held to have a certain more or less definite implications. Thus in general a party has a right to be present at a hearing, but that is not necessarily always the case (Lester & Pannick Human Rights Law and Practice, Lester & Pannick: para. 4.6.28). Similarly, there is a right to a reasoned judgment, but the duty to give reasons may vary according to the circumstances of the case (Lester & Pannick supra para. 4.6.39). Generally speaking, however, the Convention does not regulate the mode of trial of any action other than by the requirement that there should be a fair hearing before an impartial and independent tribunal. Parties were agreed, in the argument before us, that a mode of determining rights and obligations which could be said to be random and uncontrolled could not be regarded as determination by a fair hearing, but short of such an extreme position, the question whether a hearing is fair appears to be one depending on the particular circumstances.

There are three cases which particularly deal with jury trial. The first is Saric v. Denmark supra, in which the court, in dealing with a complaint to do with the examination of witnesses in a criminal trial, observed:

"The absence of reasons in the High Court's judgment was due to the fact that the applicant's guilt was determined by a jury, something which cannot in itself be considered contrary to the Convention (see application No. 15957/90, decision of 30 March 1992, D.R. 72 page 195). Thus the court considers that nothing in the case suggests that the conviction of the applicant was arbitrary."

In the case there referred to, R. v. Belgium, the Commission was considering a jury trial in Belgium and the opinion states:

"The Commission notes that in Belgian law at the close of the trial the President of the assize court must draft and put to the jury the questions concerning the facts of the case. In putting these questions it is the President's task to draw attention, in the light of the evidence placed before the court, to the specific facts which must be established for the offence as charged to be proved. Although the questions must be based on the judgment committing the defendant for trial in the assize court, the President has power to ask the jury questions about any circumstances qualifying the facts on which the indictment is founded, provided these have been discussed during the trial. The main question concerns the constituent elements of the offence, and each count on the indictment must be dealt with in a separate question. The main questions may be divided, provided this division does not work to the defendant's detriment. They may also be put in an alternative form. The main facts should be separated from the other facts, such as aggravating circumstances or grounds for arguing non-responsibility or mitigation, by asking separate questions on each.

The Commission further notes that the prosecution and the defendant may contest the questions asked or request the President to put to the jury one or more questions in the alternative. In a murder case, for example, they may ask for the jury to be invited to consider a question relating to manslaughter. Where the questions are contested, the assize court must give a ruling in a reasoned judgment.

From its examination of the Belgian system, the Commission notes that, while the jury may reply only by 'yes' or by 'no' to the questions put by the President, these questions form a framework for the jury's verdict. In the Commission's opinion, the precision of these questions - some of which may be put at the request of the prosecution or the defence - compensate sufficiently for the brevity of the jury's replies. That assessment is supported by the fact that the assize court must give reasons for a refusal to put one of the questions raised by the prosecution or the defence to the jury."

The Commission went on to conclude that no violation of Article 6 had been shown.

Thirdly, there is the decision in Tolstoy v. United Kingdom 1995 20 EHRR 442. A very large award of libel damages had been made against the applicant, who complained to the court on a number of grounds including alleged violations of Articles 6.1 and 10 of the Convention. However the complaint under Article 6.1 was restricted to the fact that, it was alleged, the applicant's right of access to the courts had been infringed by an order for security for costs made against him. The principal ground of the application was a complaint of breach of Article 10 and the main contention was that the order for damages and costs, and an associated injunction, made against the applicant amounted to a disproportionate interference with his Article 10 rights and were not "prescribed by law" as required by Article 10.2. In support of that complaint, the applicant argued that in English law at the material time there was no upper or lower limit to the amount of damages, the extent to which a judge could give guidance was strictly circumscribed and reference to specific figures or awards in other cases could not be made. As appears from paragraph 38 of the judgment of the court, he also complained that there was no recognised principle requiring the award to be proportionate of the aim of repairing damage to the plaintiff's reputation and further that the jury gave no reasons for its decision and the award could be overturned by the Court of Appeal only if it was so unreasonable that it could not have been made by sensible people but must have been arrived at capriciously, unconscionably or irrationally. These arguments therefore, although directed to the question whether the award was prescribed by law, ran parallel to the defenders' arguments in this case.

The court did not accept that the applicant's arguments established that the remedy made against him was not "prescribed by law". The court first noted that the libel was exceptionally serious and accepted that national laws concerning the calculation of damages for injury to reputation must make allowance for a variety of factual situations and allow flexibility to enable juries to assess damages tailored to the facts of the particular case. The court therefore held that the absence of specific guidelines had to be seen as an inherent feature of the law of damages in this area and continued:

"Accordingly, it cannot be a requirement if the notion of 'prescribed by law' in Article 10 of the Convention that the applicant, even with appropriate legal advice, could anticipate with any degree of certainly the quantum of damages that could be awarded in his particular case.

42. It is further observed that the discretion enjoyed by the jury in the assessment of damages was not unfettered. The jury was bound to take into account such factors as injury to feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, the re-affirmation of the truth of the matters complained of and vindication of the plaintiff's reputation. It was for the trial judge to direct the jury on the law. In addition, the Court of Appeal had the power to set aside an award, inter alia, on the ground of irrationality and to order a new trial. It therefore appears that, although the principle of proportionality as such may not have been recognised under the relevant national law, decisions on awards were subject to a number of limitations and safeguards.

43. In jury trials, the lack of reasoning for awards of damages is the norm and is to a large extent unavoidable. The applicant's submission to the effect that the absence of reasons affected the foreseeability of a particularly high award being made in this case is thus not persuasive. Moreover, the argument could apply to any award whatever the magnitude and concerns less the size of the award than the very nature of the jury system itself."

On that basis, the court concluded that the award was prescribed by law. The court, however, went on to consider whether the award and injunction were "necessary in a democratic society". In that context, the court noted that it had been accepted that the jury would have to make a very substantial award if it found the libel proved but also noted that the award was three times the size of the highest libel award previously made in England and that no comparable award had been made since. The court observed that the jury was allowed a great latitude at the material time and that the award could only be set aside if, as previously noted, it was so unreasonable that it could not have been made by sensible people and must have been arrived at capriciously, unconscionably or irrationally. The court also referred to criticisms made by the Court of Appeal, in Rantzen v. Mirror Group Newspapers Ltd 1993 3 W.L.R. 953 of the extent of the discretion allowed to a jury at the time of the trial in Tolstoy: in Rantzen the Court of Appeal held that the common law, properly understood required the courts to subject large awards of libel damages to a more searching scrutiny than had been customary up to that time. The European court judgement continues as follows:

"The court cannot but endorse the above observations by the Court of Appeal to the effect that the scope of judicial control, at the trial and on appeal, at the time of the applicant's case did not offer adequate and effective safeguards against a disproportionately large award.

51. Accordingly, having regard to the size of the award in the applicant's case in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the court finds that there has been a violation of the applicant's rights under Article 10 of the Convention."

For reasons to which I shall come, I think that there are material differences between the proper approach to a complaint under Article 6.1 and that to a complaint under Article 10. Nevertheless there are some useful indications to be drawn from the decisions to which I have referred, including Tolstoy v. United Kingdom. I do not think that the cases give any material support to the defenders' arguments based on the fact that a jury does not give reasons. Jury trial is an established institution in many, if not all, of the States parties to the Convention, and, as has been observed, it is an inherent feature of jury trial that the jury does not, and probably effectively cannot, give reasons in the way that a judge does. Similarly, the cases do not give any material support to the arguments based on the fact that previous precedents may not be referred to before a jury or that the verdict of a jury may be relatively unpredictable. On the other hand, the cases do point to a need to examine the procedure as a whole, including the procedure in any appeal, in order to determine whether there are adequate safeguards to ensure a fair hearing. At the time of the trial which gave rise to the proceedings in Tolstoy v. United Kingdom, the test to be applied in determining whether an award of damages was excessive was, as expressed by Beldam L.J. for example, whether the finding of the jury was so absolutely unreasonable that it could be said that they had not performed the judicial duty cast upon them. There is a close resemblance between that test and the test which has to be applied according to Scots law as explained in Girvan No. 2, and the observations of the European Court in regard to adequate and effective safeguards therefore obviously require to be considered in regard to the present question. I think, however, that in the light of R. v. Belgium, and other cases on the application of Article 6.1 it is necessary to consider the proceedings as a whole and therefore to consider whether there are procedures which ensure that the jury are properly directed to the questions which they are required to answer before turning to the question whether adequate judicial control can be exercised over the verdict at the appeal stage.

Although the argument ranged widely, relatively little was said about the first of the above points. In my opinion, however, there is little difficulty in concluding that the procedures followed in a civil jury trial are adequate to give the assurance that the jury are directed to the proper questions. Trial by jury is, in the absence of some special circumstances, trial by an impartial and independent tribunal. The matters in controversy in the litigation are defined by the pleadings. The Issue (and the Counter-Issue, if there is one) specify a question or questions for the jury to answer. The heads of damages and the sum sued for, which sets a maximum for the award are also set out in the Issue. The questions in the issue are often posed in general terms, but the court has power to direct that the Issue should include a special question or questions, if circumstances make it appropriate to do so. The jury are given directions by the judge as to the law to be applied and the proper approach for them to take. The jury does not give reasons but as a general rule it is possible to see what view the jury have taken of the evidence, and in that context the absence of reasons can be regarded, as it was in R. v. Belgium, as inherent in the system and acceptable. In any event, in regard to the assessment of solatium in particular, the question is what is a reasonable award, and, as the pursuer argued, even a judge can say little more than that he considers a particular sum to be reasonable.

The defenders pointed to the fact that a jury lacks experience in the assessment of solatium and to the absence of any guidance either from the judge or from counsel in regard to current levels of awards. They also complained that because of the lack of guidance, jury awards were less predictable than those of judges, with consequences for the defenders in deciding what sum they might tender, if so advised. There is, however, no evidence that jury awards in general tend to be excessive, although, of course, there are a few reported cases of very high awards. Nor is there any evidence that, overall, there is any material difficulty in settling actions which are sent to jury trial. Bearing in mind that the underlying rule of law remains, as the authorities which I shall mention later show, that the task of the judge or the jury is to assess a sum reasonable in all the circumstances of the particular case, I do not think that these criticisms made by the defenders go any material way to show that jury trial involves breach of Article 6.1. The more difficult question is whether the system as it is offers adequate safeguards against unreasonable awards. It seems to me, however, that in considering the second question, it should not be forgotten that no material criticism can be made of the fairness of the procedure at the trial, considered in itself.

In considering that question, it seems to me that one should first look at the present state of the rules of Scots law in regard to appeals against jury verdicts, without reference to any possible impact of the Convention on those rules. The test to be applied, as a matter of Scots domestic law, in considering whether a jury award for solatium is excessive has been very fully discussed recently in the two Girvan cases and particularly in the House of Lords in Girvan No. 2 supra. There was some discussion before us as to how far what was said in that case might be open to construction by this court but in the first instance, I am prepared to proceed on the footing that what was said in the House of Lords, particularly by Lord Hope, can be taken to lay down the current standard, without any attempt at qualification or interpretation. Lord Hope examined the earlier authorities and in particular the decision in Landell v. Landell 1841 3 D. 819 which, prior to Girvan, had been taken as setting out the relevant principles. Much of the discussion in Girvan concerned the so-called working rule which had developed after Landell, to the effect that up to 100 percent error was permissible and that it was only where the error could be said to exceed that that the court could interfere. Lord Hope concluded, at page 17, that the working rule was no more than a convenient way of describing the test laid down in Landell and did not amount to a positive rule to be applied. The upshot of the whole discussion was to re-affirm that the decision in Landell sets out the principles to be applied. The core of that decision was found in a passage from the opinion of the majority of the judges, quoted by Lord Hope at page 6, which is in the following terms:

"It is clear that, in order to warrant the application of the term 'excessive', the damages must be held to exceed, not what the court might think enough, but even that latitude which, in a question of amount so very vague, any set of reasonable men could be permitted to indulge. The excess must be such as to raise on the part of the court, the moral conviction that the jury, whether from wrong intention, or incapacity, or some mistake, have committed gross injustice, and have given higher damages than any jury of ordinary men fairly and without gross mistake exercising their functions, could have awarded. It must be admitted that, even in this sense, there can be no definition of the term excessive, and indeed no form of expression can well be devised that does not leave this very point somewhat vague, and does not raise a kind of secondary jury question to be determined by the court."

Lord Hope's speech at least, therefore, can be read as a reaffirmation of the traditional test and as discouraging any tendency which might be detectable in McGinlay v. Pacitti, McGregor v. Webster's Executors and, possibly, Hewitt v. West's Gas Improvement Co, to apply some less stringent test. I am prepared to proceed, at this stage, on the basis that that is the proper reading of it.

It is, however, useful to keep in mind also the reasoning which led to this view. Lord Clyde, at page 24, observed that an award of solatium which does justice between the parties is very much a jury question, as a matter of fact and circumstance where precise rules are not to be expected. He referred to Lord Guthrie's charge to the jury in Traynor's Executors v. Bairds & Scottish Steel 1957 S.C. 311 in which Lord Guthrie invited the jury to make "such an award as you think is moderate and reasonable but adequate, having in view the particular circumstances of this case, because the only rule of law which applies to an award of solatium is that it is dependent on the particular circumstances". Lord Clyde further discussed the advantages and disadvantages of assessment by a judge and by a jury respectively and cited the observations of Lord Lowry in Simpson v. Harland and Wolff plc 1988 N.I. 432. Lord Lowry observed that in England what had started in 1934 as a general level of jury awards had gradually but inevitably been transformed into the general level of judges awards and that as a result the awards of general damages in England and Wales had tended to fall behind the awards of general damages in Northern Ireland. He continued:

"This tendency is inevitable, since the age of judges ranges from middle age to elderly and, as objective people, (including, I believe, most High Court judges) will readily concede elderly people (particularly men) if they are not in business or constantly dealing with pecuniary transactions of some kind, become less adaptable and less receptive to changing values even though at the same time they may remain intellectually able and alert...A judge's award of general damages is not intrinsically better than a jury's. The chief merit of the former is not in its amount but in its greater predictability and consistency, which ought to be readily achievable by a numerically small judiciary. These qualities are based on the knowledge of other awards in like cases and on the ability, through experience, to make fine distinctions and adjustments between one case and another and they promote fairness, as between one claimant and another. But it does not follow that a judge, equipped with all the experience of the standard of the reasonable juror, should reject that experience in an effort to conform to a different standard."

Thus one important reason for the court's reluctance to interfere with juries' verdicts arises from the open character of the very question which has to be determined. A second important element in the reasoning is that, as both Lord Hope and Lord Clyde said, a court in Scotland does not have the power to modify a jury's award or substitute a different amount but can only send the question back to a new trial. That is a constraint against interfering with juries' verdicts. The latter element in the reasoning may have less relevance in considering the application of the Convention but the former element is, in my view, important. I do not think that it is possible to consider what is a fair hearing without bearing in mind what is the issue which has to be determined.

In considering whether the existing Scottish system offers adequate judicial control over the verdict of the jury the first point to make, in my view, is that the observations of the European Court in Tolstoy v. United Kingdom cannot, in my view, be regarded as directly applicable. Tolstoy v. United Kingdom was concerned with the application of Article 10 and the observations of the court were directed to the question as to what was necessary in a democratic society. The concern of the court was that there should not be undue interference with rights of free speech and therefore that awards in defamation cases should not exceed a level proportionate to the aim to be achieved by the making of such awards. That was the basis of the criticism of the approach of the English courts before the decision in Rantzen supra. In making that criticism, however, the court was, it seems to me, introducing an element over and above the question of the reasonable amount of compensation for the injury. The court did not hold that the restrictions on the grounds on which a court could interfere with a jury's verdict brought about unfairness and led to a breach of Article 6: it held that the possibility of an excessive award of damages led to a breach of Article 10. That introduces considerations which are not only separate and apart from the question whether the award is per se reasonable but are considerations with which the court can be regarded as particularly concerned and which do not fall within the province of a jury. In effect, the court is exercising a judicial supervision of the level of awards on a basis of proportionality. The position in regard to assessments of solatium seems to me to be different precisely because, as has been observed above, there is no particular reason to regard a judge's award as having any greater intrinsic merit than a jury's award.

I think it is also worth observing at this stage that one should not look at the jury trial in isolation from the rules of law which determine the circumstances in which a case does go to a jury. Section 9(b) of the 1988 Act provides that a case should not go before a jury if there is special cause and although that expression has been narrowly interpreted the statutory provision does have the effect that the court has the power to determine that a case is unsuitable for jury trial.

The defenders were at pains to emphasise that their complaint was not that juries were too generous but that the system of trial by jury permitted excessively wide variations between similar cases. In the refined form of their argument, it was made clear that comparison with judges' awards was made only to provide a means of highlighting the features which were objectionable in the jury system. Their central contention was that the jury system was in itself an unfair form of trial because of the lack of control over excessive or unduly low awards. That argument, therefore, could be advanced even if all assessments of solatium were made by juries. The defenders accepted that the law governing the assessment of solatium was correctly stated by Lord Guthrie, in the passage cited earlier. The question as to the proper amount of solatium has traditionally been classified, as it was by Lord Clyde in Girvan No. 2 supra, as a "jury question", to be determined simply on the basis of what is reasonable in a particular case (1998 S.C. (H.L.) at p. 24). That being the rule of law, I am not persuaded, at this stage, that it can, far less that it must, be said to be unfair that the amount should be settled by a jury, under proper direction, and that that verdict should be interfered with only if it can be said to be so unreasonable as to infer that the jury have not carried out their function in the proper way.

It is, of course, true that the courts in England have made an explicit decision that general damages should be assessed by judges on a "conventional" basis (Ward v. James supra). It seems to be accepted that that was a choice made on policy grounds. The two forms of assessment of solatium, by judges and by juries respectively, are different. The choice is one between, on the one hand, a system which places much reliance on awards in comparable cases and other such material and which may therefore be more predictable but which carries the risk, as Lord Lowry explained, of falling behind the levels that ordinary persons would consider reasonable; and, on the other, one which allows persons other than professional judges to contribute to the assessment at the risk of variations in the level of awards. Each system has advantages and disadvantages. The disadvantages of the judicial system were in my view graphically illustrated in the decision of the Court of Appeal in Heil v. Rankine [2001] Q.B. 232, the effect of which was to bring about an across the board increase in general damages of up to 20%, a conclusion which implies that many claimants have been denied a fair recompense for their injuries and does not give ground for any particular enthusiasm as to the fairness of assessment of damages by judges as compared with assessment by juries. On the whole, therefore, I do not find myself able to say that the present system of assessment by juries, given the legal framework and the possibility of appeal on the grounds explained in Girvan No. 2, is unfair, so as to give rise to a breach of Article 6. The question is not whether jury trial is or is not a worse means of assessing damages, in some broad sense, than proof before a judge. The question is whether jury trial breaches Article 6, and much of the argument presented seems to me to have little real connection with that Article.

Indeed, in spite of the defenders' submissions, it seems to me that that argument gains much of its plausibility from the fact that assessments, which are thought to be more predictable, are made by judges as well as by juries. As the defenders recognised, however, the proper approach is that the system of assessment of solatium by juries has to be looked at on its own, especially as jury trial is, in law, the primary means of determining solatium. That is the point of the requirement of special cause for withholding a case from a jury. If jury trial cannot in itself be said to be unfair, equally it seems to me that it cannot be said to be unfair to require that cases should go to jury trial unless there is special cause. It is, of course, open to the parties to allow the case to go to proof but that has no more relevance to the issue of the application of Article 6 than does the fact that the parties could agree to go to arbitration if they chose. In England, there was an explicit decision, amounting to judicial legislation, or very nearly so, to prefer the system of assessment of damages by judges and thus to prefer certainty and predictability as a governing factor. Scottish courts have not followed that precedent, for good or ill. The court might, no doubt, have followed the English precedent but has not done so. Moreover, the system has been reviewed, in particular by the Strachan Committee, which was set up to consider the future of jury trials and did not recommend their abolition. In these circumstances, I think that it would require clear grounds for this court to hold that the application of the Convention required jury trial to be abandoned and I am not convinced that such clear grounds have been established. If it be the case that there are reasons of public policy which might justify a change in the law, that is, in my view, a matter for the legislature. I think that that view is supported by what Lord Hope said in Girvan No. 2 at p. 22.

So far I have proceeded on the basis of the system as it exists and accepting the observations in the case of Girvan No. 2 at their face value. I agree, however, that, as Lord Hamilton points out, there are expressions in the speeches of Lord Hope and Lord Clyde which may be interpreted as approving of a less stringent test for determining whether a jury award is excessive or, indeed, inadequate. I do not think, however, that at this stage it is possible to give proper consideration to that issue: it should be discussed, in my view, in relation to a particular award, and particular circumstances. That is a further reason for not upholding the defenders' arguments at this stage: it would be premature to do so. If the question of the proper approach in an appeal may be open for reconsideration, it cannot be said that the defenders will necessarily suffer an unfair trial. Similarly, there may be room for argument that, in particular circumstances at least, the application of the Convention would require greater guidance to be given to a jury in regard to the amount they may award.

Three further points remain to be mentioned briefly. Firstly, I agree with Lord Hamilton that it is not necessary to rely on any argument from proportionality in this case. Secondly, the defenders argued, as I have explained, that the term special cause could be given a different interpretation from that traditionally applied, in the light of the Convention. In my opinion, however, the words could not be given any interpretation which led to the result that every case involving the assessment of solatium was sent to proof rather than jury trial. The fact that a case involves the assessment of solatium is in no sense special, in my view, and the older authorities on what constitutes special cause are simply a direct application of clear statutory wording. Thirdly, the defenders submitted that there should be a declaration that the provisions of the 1988 Act are incompatible with the Convention: but there is no point in attempting to discuss that argument unless and until grounds for holding that jury trial is incompatible with Article 6 have been established.

In my opinion, the case should be remitted to the Lord Ordinary to allow issues.

Heasman v. J.M. Taylor & Partners [2002] ScotCS 63 (8th March, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Coulsfield

Lord Hamilton

Lord Johnston

A2703/00

OPINION OF LORD HAMILTON

in the cause

MATTHEW HEASMAN,

Pursuer;

against

J.M. TAYLOR & PARTNERS,

Defenders:

________

8 March 2002

Under the law of Scotland an individual who has suffered personal injuries through the fault or negligence of another is entitle to reparation from that other in the form of damages. The matters for which reparation are due may include financial loss (commonly referred to as patrimonial loss) and pain, suffering and other non-patrimonial consequences of the wrongdoing. In the case of a sufferer who has survived his injuries a payment or award for non-patrimonial loss is known as solatium. Sometimes solatium has been described as "an acknowledgement" (McGinley v Pacitti 1950 S.C. 364, per Lord President Cooper at p. 368, applying to an injured person the description commonly applied to the award, now superseded, for solatium on the death of a relative); sometimes it has been described as "compensation for personal injury" (Girvan v Inverness Farmers Dairy 1998 SC (HL) 1, per Lord Hope of Craighead at p. 9G-H). The "loss of society" award now made under statute in death cases is described as a sum of money "by way of compensation" (Damages (Scotland) Act 1976 section 1(4)). In a real sense, of course, the non-patrimonial consequences of injury cannot be measured against a sum of money, any more than can the non-patrimonial consequences of bereavement. But, however described and whatever precisely their function, awards of this kind should have a reasonable and proportionate correspondence with the nature and extent of the non-patrimonial damage sustained.

The entitlement in respect of solatium is to the payment of such sum of money as fairly and reasonably reflects the nature and extent of the non-patrimonial disadvantage suffered and likely to be suffered as a result of the wrongdoing. That, in my view, is the claimant's substantive right. It is not possible to define that right more precisely because the range of particular circumstances giving rise to a claim for solatium is as large as the number of such claims.

Absent a compromise of such a claim, it is vindicated by legal process in the civil courts. Subject to a relatively low financial threshold, such a claim may in Scotland be brought in the Court of Session. An action of damages for personal injuries, being one of the classes of action referred to in section 11 of the Court of Session Act 1988, is directed, subject to section 9(b) of that Act, to be tried by jury. If section 9(b) applies, the Lord Ordinary may allow a proof. Actions of damages for personal injuries brought by a surviving injured person virtually without exception include a claim for solatium. A consequence of the statutory provisions is that, depending on circumstances which may be, and usually are, unrelated to the nature of the damages claimed, the action will be tried either by jury or by a judge sitting alone. Whichever the tribunal, it will, if liability is admitted or established, require to adjudicate upon the same matter, namely, the proper measure of the claimant's right to damages, including solatium.

The present action is an action of damages for personal injuries. It includes a disputed claim for solatium. The defenders admit, for the purposes of this action, liability to make reparation to the pursuer. While the pursuer makes a claim for various patrimonial losses as well as for solatium, the former may for present purposes be disregarded since the burden of the defenders' contention before us was that the remit to jury trial of any action which includes a disputed claim for solatium would be inconsistent with the defenders' Convention right to a fair hearing. The logic of the defenders' argument indeed takes them beyond even the relatively simple circumstances of the present case. If they are right, it would be inconsistent with any party's Convention right to remit to jury trial an action for personal injuries even where the only point at issue was the monetary sum at which an undisputed amount of pain and suffering should be assessed. It may thus be appropriate to test the defenders' argument against such a hypothetical case.

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority, including a court, to act in a way which is incompatible with a Convention right. That sub-section does not apply to an act if as the result of one or more provisions of primary legislation the authority could not have acted differently (section 6(2)). The latter sub-section gives rise to questions concerning the meaning and effect of section 9(b) of the Court of Session Act 1988 to which I shall return. The first issue, however, is whether it would be incompatible with parties' Convention rights under Article 6 for a Lord Ordinary to remit for trial by jury any action for damages for personal injuries which included a disputed claim for solatium.

It may be helpful in addressing that issue to set it against a historical background. In the 1950s and 1960s jury trial of actions for personal injury was a prominent feature of Court of Session business at first instance. Claims arising out of industrial accidents were commonly adjudicated in that way, as were claims arising out of road traffic accidents. Some concerns were during that period expressed about this mode of trial. In 1957 the Secretary of State for Scotland appointed a Committee under the chairmanship of Lord Strachan to consider, with related matters, "whether, and if so to what extent, the existing right to jury trial in civil actions in Scotland should be abolished or limited". The Committee reported in 1959 (Civil Jury Trials in Scotland - Cmnd. 851). While the Committee was unanimously of the view that the existing right to a civil jury trial in the Court of Session should be limited, its members were divided on the question whether that right should be abolished. In the event it was not abolished; nor were any immediate steps taken by legislation to limit it.

In 1964 Mrs Anne McCallum sustained grave physical injuries in a road accident. She sued the driver of one of the vehicles involved. Liability was ultimately admitted. Her claim, which was almost wholly for solatium, was remitted to jury trial. A jury awarded her total damages of Ł23,000. On a motion for a new trial (the only mode of appeal) that award was set aside as excessive and a new trial allowed (McCallum v Paterson (No.1) 1968 S.C. 280). A second jury, having heard similar evidence to that heard by the first jury, awarded her total damages of Ł22,000. Again the award, on a motion for a new trial, was set aside as being excessive, a third trial being allowed (McCallum v Paterson (No.2) 1969 S.C. 85). In the course of his opinion in that case Lord Guthrie, having referred to Duffy v Kinneil Cannel & Coking Coal Co 1930 S.C. 596, said at p.90 -

"What is a fair award of solatium is consequently a matter of fact, and is therefore peculiarly a matter within the competence of a jury. What is a reasonable award must depend upon the particular circumstances of the particular case. There can be no tariff for solatium. No limits as to permissible awards can be laid down ab ante. Consequently I agree with what was said in Von Mehren's Curator Bonis v Wood [1968 S.C. 280] and by Lord Justice-Clerk Grant in McCallum v Paterson at p.282, at the previous hearing of the present case, that amounts held due in other cases are of little assistance in deciding whether an award of damages is reasonable or excessive. In Traynor's Executrix v Bairds & Scottish Steel [1957 S.C. 311] I had to direct a jury as to the law on awards of solatium in order to deal with a submission by counsel that they had to be measured in hundreds of pounds. I instructed the jury (at p.314) 'to make such an award as you think is moderate and reasonable but adequate, having in view the particular circumstances of this case, because the only rule of law which applies to an award of solatium is that it is dependent upon the particular circumstances - for example, upon such matters as the gravity of the injury; upon its permanent or temporary character; upon the amount of pain endured by the injured party, and upon the duration of that pain. These are circumstances which you have to bear in mind, and you have to make an award which is reasonable in relation to the particular circumstances. You will also have regard to the present value of the pound.' To these views I adhere....".

Neither of the other judges in McCallum v Paterson No. 2 commented on Lord Guthrie's form of charge in Traynor's Executrix v Bairds & Scottish Steel. Mrs McCallum's claim was ultimately settled extrajudicially. A legislative consequence of this litigation appears to have been the enactment of section 2 of the Administration of Justice (Scotland) Act 1972 (which introduced a right of appeal to the House of Lords against an interlocutor of the Court of Session on a motion for a new trial).

In England and Wales matters were developing somewhat differently. Since the enactment of the Administration of Justice (Miscellaneous Provisions) Act 1933 the High Court had, in relation to most cases (including personal injury cases), had a wide discretion in relation to the mode of trial. By the 1950s most assessments of damages in personal injury cases were in that jurisdiction made by judges sitting alone, though some eminent judges continued to see value in jury determinations (Scott v Musial [1959] 2 Q.B. 429, per Morris L.J. at pp. 436-7). In that case Morris L.J. observed at p.438 - "The views of juries may form a valuable corrective to the views of judges." However, by the 1960s the Court of Appeal had adopted a firm policy that personal injury cases should, other than in exceptional circumstances, be tried by judges sitting alone (Sims v William Howard & Son Ltd [1964] 2 Q.B. 409; Ward v James [1966] 1 Q.B. 273). Lord Denning M.R. and Diplock L.J. were among other powerful voices in favour of that policy. The perceived advantages of such a policy included assessability, uniformity and predictability (Ward v James, per Lord Denning M.R. at pp. 299-300). In consequence of the implementation of that policy and the gathering and ordering of decided cases in Kemp & Kemp - The Quantum of Damages (first published in 1954) a substantial body of information on levels of award for different types of personal injury became available. By this time, if not earlier, awards in England and Wales for the equivalent of solatium could be described as "conventional" or "tariff".

In Scotland the relevant legislative framework remained that contained in section 4 of the Evidence (Scotland) Act 1866 and section 28 of the Court of Session Act 1825 (the statutory predecessors of sections 9 and 11 of the Court of Session Act 1988). However, an increasing proportion of personal injury actions came to be tried by judges sitting alone rather than by juries. This may have been due partly to the choice of parties and partly to a greater readiness by judges to find that "special cause" existed for allowing a proof - as the Strachan Committee had recommended (Cmnd. 851, para.68). Awards by Scottish judges sitting alone increasingly came to be reported and to be cited in subsequent cases. An apparent discrepancy between the levels of awards made by English and by Scottish judges was remedied in Allan v Scott 1972 S.C. 59 in which it was held, among other things, that English awards for general damages in similar cases might competently and helpfully be taken into account in determining figures for solatium. The digesting of Scottish awards in McEwan and Paton on Damages for Personal Injuries in Scotland (first published in 1983 under the title A Casebook on Damages in Scotland) and the use also before Scottish judges of Kemp & Kemp - The Quantum of Damages provided a body of material for guidance in the making by judges of awards.

By 1988 the classes of cases in practice tried by juries were substantially less than those listed in section 28 of the Court of Session Act 1825 so that the Scottish Law Commission in its relative Report (Cmnd. 315) was able to recommend that that list be substantially restricted (para.15). The result was the enactment of section 11 of the Court of Session Act 1988 which restricted to four the classes which, subject to section 9(b), were to be tried by jury. One of those classes is "an action for personal injuries"; another is "an action for libel or defamation".

Today only a very small number of personal injury cases (or indeed any cases) actually proceed to an adjudication by a jury. A somewhat larger number are remitted for jury trial but settle prior to the diet of trial. Some albeit few cases do, however, proceed to a jury verdict. Recent examples are Girvan v Inverness Farmers Dairy and McLeod v British Railways Board 2001 S.C. 534. In both these cases an important matter in dispute at the trial was the appropriate amount of solatium.

In other jurisdictions in the United Kingdom a disadvantage in having all personal injury cases decided by judges sitting alone has come to be recognised. As Lord Lowry L.C.J. observed in Simpson v Harland and Wolff [1988] N.I. 432 at p. 440 judges may, in comparison with the general adult population, "become less adaptable and less receptive to changing values". His Lordship further observed "A judge's award of general damages is not intrinsically better than a jury's. The chief merit of the former is not in its amount but in its greater predictability and consistency, which ought to be readily achievable by a numerically small judiciary" (his Lordship's emphasis). These words appear in a passage from that judgment cited by Lord Clyde in Girvan v Inverness Farmers Dairy at p.25.

In England Lord Woolf M.R., delivering a judgment of the Court of Appeal in the context of a discussion of the use of civil juries in the limited classes of cases where in that jurisdiction they are still used, observed in Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at p. 513F - "...the jury because of their composition are a body which is peculiarly suited to make the final assessment of damages...". In Heil v Rankin [2001] QB 272 the Court of Appeal found it necessary, having taken into account a range of extrajudicial material, to give revised guidelines for certain types of non-pecuniary awards.

Experience has thus shown that, while there may be significant advantages, including predictability and comparative justice as between one group of litigants and another, in a system where judges alone determine awards for non-pecuniary damage, there may also be disadvantages in relying exclusively on such a source. It can be said that the relative merits and demerits of judge awards and of jury awards are debatable. What, however, cannot in my view properly be said is that adjudication of non-pecuniary damage exclusively by judges is a paradigm of a fair trial against which trial by jury falls to be measured. The fairness or otherwise of civil trial by jury must be judged on the incidents of that procedure itself taken as a whole, including such controls as may exist by way of appeal or other form of review by a higher court.

Article 6 of the Convention insofar as material provides:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair .... hearing...".

Section 2 of the Human Rights Act 1998 requires a court, when determining a question which has arisen in connection with a Convention right, to take into account among other things the jurisprudence of the European Court of Human Rights ("the Court"). In the nature of things the jurisprudence of the Court relative to the right under Article 6 to a fair hearing has in general evolved in the context of the retrospective consideration of what has earlier occurred in domestic courts and tribunals. Here the issue arises prospectively. The test for infringement in such circumstances may not as yet be wholly clear but, in my view, it can be taken for present purposes as being whether the act in question will inevitably, or at least with practical certainty, result in a breach of the party's right to a fair hearing. That will require consideration not only of the prospective jury trial itself but also of any right to have an adverse verdict reviewed by a higher court. It will also require consideration of what remedies that higher court may afford, since the entitlement under Article 6 is not simply to be protected from an unfair hearing but positively to be afforded a fair hearing in the determination of one's civil rights and obligations.

So far at least as drawn to our attention at the discussion, only limited and incidental consideration has been given by the Court or the Commission to jury trial as a mode of hearing. It is plain that, at least in relation to criminal business, juries are used in Convention countries beyond the United Kingdom and that as a process it is not regarded as inimical to Article 6 (Saric v Denmark, application 31913/96, determined by a Chamber of the Court on 2 February 1999). Provided the issues arising at the trial are put to the jury with sufficient particularity, a monosyllabic response may be sufficient (R. v Belgium, application No. 15957/90 determined by the Commission on 30 March 1992). The impracticability of a jury giving reasons for its decisions is recognised and accepted. The use of juries in the determination of civil rights and obligations has also been noticed by the Court (Tolstoy Miloslavsky v United Kingdom [1995] 20 EHRR 442). While I agree with your Lordship in the chair that that case is not directly applicable, it does, in my view, suggest that subject to appropriate safeguards the determination of issues, including the assessment of damages, by a civil jury is (or at least may be) a process compliant with Article 6.

I accept that the existence of proper safeguards is important. Mr Jones referred us to the speech of Lord Bingham of Cornhill in Brown v Stott 2001 SC (PC) 43 at p.52 where his Lordship in discussing Article 6(3)(d) quotes a passage from the judgment of the Court in Kostovoski v Netherlands [1989] 12 EHRR 434 quoting in turn a description used by the appellant's counsel in the latter case - "the interest of everybody in a civilised society in a controllable and fair judicial procedure". The circumstances of Kostovoski v Netherlands (the use of anonymous informers for the purpose of criminal proceedings against persons accused of involvement in organised crime) are very far removed from the present case. But I accept that, in the case of a trial by jury as in the case of any legal process, appropriate safeguards for a fair trial must be in place.

Your Lordship in the chair has set out comprehensively the arguments submitted to us, including the six factors relied on by the defenders. I do not repeat them. While it is the totality of the procedure which requires to be addressed, it is convenient for the purposes of analysis to consider separately (1) the adjudication process by the jury itself, (2) the availability of review by a higher court and (3) any incidental factors.

In my view there is no inherent unfairness in the circumstance that jurors have no prior experience of assessing damages. Jurors are drawn at random from the adult community and may reasonably be supposed collectively to be alive to the current value of money and to be capable in any particular case of translating fairly a non-financial disadvantage into a monetary sum. I am not persuaded that as a generality the amounts awarded by juries for solatium are unfair, far less grossly unfair. The fact, if it be a fact, that jury awards can be unfair does not of itself warrant the inference that it would be an infringement of Article 6 to send any case for trial by jury. Nor am I persuaded that the absence of reasons for arriving at a particular figure involves, or at least inevitably involves, unfairness. In modern practice the written Issue placed before the jury provides for figures to be entered under various heads. Solatium to date and future solatium are separate heads. The total sum sued for is specified and forms an aggregate figure beyond which, the jury is directed, it cannot go. The appropriate figures to return will, after consideration of the particular circumstances, ultimately be a matter of impression. Judges, albeit informed by earlier experience or by the citation of cases to them, give little in the way of reasoning for their awards of solatium. More troubling, in my view, is the absence before the jury of any information about sums awarded by judges or juries in comparable cases. The traditional direction to the jury on solatium is that given by Lord Guthrie in Traynor's Executrix v. Bairds and Scottish Steel, perhaps amplified by a reference to current purchase prices of familiar items, such as a house or a motor car. In his dissenting opinion in Girvan v. Inverness Farmers Dairy 1996 S.C. 134 at p. 153 Lord Abernethy forcibly criticised the practice of not giving to jurors more assistance as to the range of figures which might be appropriate. The practice was not changed by the promulgation of any rule of court (see Girvan v. Inverness Farmers Dairy, per Lord Hope at pp. 20-2), though the possible need for re-examination and reform of this matter has again been suggested (McLeod v. British Railways Board, per Lord President Rodger at pp. 540-1, para. [17]). While the continuation of this practice is, in my view, regrettable I am not persuaded that a jury, denied such guidance, is inevitably disabled from making a fair award. There is no compelling evidence that jury awards even for the same injuries are, as a generality, widely discrepant. While the two juries in Girvan v. Inverness Farmers Dairy returned figures which were to some extent diverse, those returned in McCallum v. Paterson were very similar. It is also necessary, as discussed below, to bear in mind the control available by review of the verdict in the Inner House. In any event it must, in my view, be borne in mind that, so far at least as drawn to our attention, there is no rule of law (whether based on primary legislation, rule of court or binding judicial decision) which prevents a judge presiding at a jury trial from giving, if the circumstances so indicate, fuller directions on damages than has been traditional. Indeed such a judge now has an obligation to act in a way which is compatible with the parties' Convention rights (Human Rights Act 1998 section 6(1)). An "act" includes a failure to act (section 6(6)). If in a particular case a failure to give fuller directions on damages would be incompatible with the right of a pursuer or a defender or both to a fair trial, the presiding judge will have an obligation to give such directions. Any such directions would, of course, include a direction that any figures referred to were for guidance only and were not prescriptive. I am not persuaded that any perceived difficulties in giving such directions are serious, far less insuperable.

Section 29 of the Court of Session Act 1988 confers on any party dissatisfied with the verdict of a jury the right to apply to the Inner House for a new trial on various grounds, including that of excess or inadequacy of damages. An appeal lies to the House of Lords without the leave of the Court of Session from an interlocutor of that court on a motion for a new trial (Administration of Justice (Scotland) Act 1972 section 2(1)). On such an appeal the House of Lords has the same powers as those exercisable by the Court of Session (section 2(2)). In Girvan v. Inverness Farmers Dairy the House of Lords discussed the test for review under section 29. Their Lordships approved the approach adopted in Landell v. Landell (1841) 3 D. 819. It is, however, important in my view to notice how their Lordships expressed themselves in Girvan v. Inverness Farmers Dairy. The leading speech was delivered by Lord Hope. While his Lordship at pp. 6-7 quotes with approval a passage at p. 825 from the joint opinion delivered in Landell v. Landell by four of the judges (Lords Fullerton, Mackenzie, Jeffrey and Murray, who comprised part of the majority) - where the expressions "gross injustice" and "gross mistake" are used - the use of the adjective "gross" in this context appears to me to be essentially an example of early 19th century linguistic usage. In my view, it is difficult, reading his speech as a whole, to suppose that Lord Hope was construing section 29 as having the effect that the Inner House, having allowed to the jury award appropriate latitude, was not entitled to interfere if the award was clearly unjust, being so entitled only if it was "grossly unjust". This would hardly consist with his Lordship's equiparation of the approach in Landell v. Landell to that adopted by the Court of Appeal in Scott v. Musial (see Lord Hope at p. 14D-E). The test there referred to is that the figure

"appears so excessive or so inadequate that no twelve reasonable jurors could reasonably have awarded it; or, stated otherwise, whether the figure appears to be out of all proportion to the circumstances of the case".

Likewise, Lord Clyde makes no reference to "gross injustice" but observes that the theme which runs through the opinions in Landell v. Landell "is a concern that justice must be done between the parties" (p. 22H-I). That the "no reasonable jury" test is in modern language the essential effect of Girvan v. Aberdeen Farmers Dairy appears to be supported by the First Division's interpretation of that decision in McLeod v. British Railways Board (Lord President Rodger at p. 536D-E).

Whether or not jurors are given fuller directions on damages by presiding judges there is likely to remain a measure of disparity between jury and judge awards. If, however, in any motion for a new trial the court carries through the two stage exercise described by Lord Hope in Girvan v. Inverness Farmers Dairy at pp. 16-17 any jury award which is disproportionate to what a reasonable jury would have awarded will be liable to be struck down. Thus the appellate procedure provides a framework for ensuring that a party does not suffer the consequences of an unfair trial. I would, however, add this. Girvan v. Inverness Farmers Dairy was decided in the House of Lords in November 1997 before the enactment of the Human Rights Act 1998. No reference appears to have been made at any stage to the Convention. If, contrary to my view, the interpretation there put on section 29 of the Court of Session Act 1988 has the consequence that an aggrieved party does not, by reason of some weakness of control by the appellate regime, have an effective means of redress against the consequences of an unfair trial, then section 29 may well require to be reinterpreted in the light of section 3 of the 1998 Act .

The remaining particular factor relied on by the defenders was that of alleged difficulties in tendering. In my view there is no substance in this factor. Defenders have the opportunity to tender from the outset of judicial proceedings. If they delay to do so until after a jury trial is allowed, there may be a greater degree of uncertainty as to the outcome than if a proof had been allowed. But that uncertainty is not, in my view, of a degree that the defenders are effectively deprived even at that stage of protecting themselves against unnecessary expense. The high proportion of cases remitted to jury trial which do settle (by tender and acceptance or by equivalent extrajudicial agreement) prior to the commencement of any trial suggests that rational, non-arbitrary predictions can be and are made. In any event I have serious doubts whether a facility of this kind (which must be unknown in many jurisdictions) has any relevance to whether "[i]n the determination of his civil rights and obligations" any party has or has not been deprived of his entitlement to a fair hearing.

Looking as a whole at the procedure whereby actions for personal injuries including solatium are remitted for jury trial I am not satisfied that the judicial act of so remitting such an action is inconsistent with either party's entitlement under Article 6 to a fair hearing.

I would add this. A party has a positive entitlement to a fair hearing. The powers vested in the court under section 29 of the Court of Session Act 1988 are essentially negative, namely, to set aside the verdict and to order a new trial. There is, in contrast to the power of the (English) Court of Appeal acting under rules made by virtue of section 8 of the Courts and Legal Services Act 1990, no power in the Inner House itself to assess appropriate damages. It was not, however, argued that the absence of such a power or of a power to order a proof had the consequence that the party's positive right to a fair hearing was infringed.

In the circumstances I find it unnecessary to discuss the pursuer's submission that, if in some respect or respects civil jury trial is inconsistent with any implied right under the Convention, that mode of trial is saved from infringement by the application of the principle of proportionality.

I agree with your Lordship in the chair that the defenders' submission on the interpretation, in the context of the Human Rights Act 1998, of "special cause" in section 9(b) of the Court of Session Act 1988 cannot be accepted. My reasons are those which I endeavoured to express against a very similar argument in Gunn v. Newman 2001 S.C. 525. I also agree that no advantage is served by discussing in this case the submissions directed to a declaration of incompatibility.

In the whole circumstances, while I fear that this opinion may raise more questions than it answers, I am not persuaded that the remit of this action to jury trial would be unlawful. I would direct the temporary judge accordingly.

Heasman v. J.M. Taylor & Partners [2002] ScotCS 63 (8th March, 2002)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Coulsfield

Lord Johnston

Lord Hamilton

A2703/00

OPINION OF LORD JOHNSTON

in the cause

MATTHEW HEASMAN

Pursuer;

against

J.M. TAYLOR & PARTNERS

Defenders:

_______

8 March 2002

This case has been reported to the Inner House by Temporary Judge Coutts, Q.C. on an important question of principle in respect of which, we were informed, a considerable number of cases currently depend, the issue being whether not an allowance of issues in an action for reparation involving a claim for solatium inter alia contravenes or is inconsistent with Article 6 of the European Convention on Human Rights which, paraphrased, entitles a party to a fair trial before an impartial and independent Tribunal.

I have had the opportunity of reading the Opinion of your Lordship in the chair and I gratefully adopt your Lordship's summary of the arguments presented to us in a full debate and also your Lordship's analysis of the relevant European jurisprudence so far as it goes. Since I am in agreement with the conclusions of your Lordship and with the advice to be presented to the reporting judge I will content myself with a few observations, and I approach the matter on that basis largely because, in my opinion, the fundamental flaw in the approach currently maintained on behalf of the defenders is one of prematurity. The relevant issue, in my opinion, can only be properly considered after a jury trial has taken place, and probably in the context of an appeal.

Before returning to that point, however, it seems to me from a general study of such relevant cases as there are from the European Court of Human Rights no inherent incompatibility in the normal sense of that word exists between a jury trial procedure and Article 6 of the Convention, certainly not as to render that process nugatory, whether in a civil or criminal context.

Secondly, while I recognise the position in England, not least with regard to the limited extent to which juries are involved in the assessment of damages being largely now restricted to libel cases, I do not find the general approach of the English court to be helpful against the background of the problem we have to consider in relation to the jury trial system in Scotland. I am particularly concerned by the approach of the Court of Appeal in Heil v. Rankine 2001 Q.B. 231 which seems to me to be a form of judicial engineering operating on an instinctive rather than a rational basis.

Be that as it may, it seems to me necessary for us to consider this position in the context of the long-established system of jury trials in reparation cases in Scotland which has been examined comprehensively by two Committees, namely that chaired by Lord Strachan and that chaired by Lord Maxwell. While the latter may have had a slightly narrower remit there is no doubt to my mind that Lord Strachan's remit encompassed, if not directly bearing on, the question of whether the jury trial system should be maintained. That it survived such a scrutiny is an important element in my opinion in the present equation.

It is also important to bear in mind that at this stage of the process we are simply looking at allowance of issues under section 11 of the Court of Session Act 1988. I entirely endorse the view that for there to be special cause under section 9(b) of the same Act, that cause must be special to the particular case and therefore the issue does not arise in the present context where, if problems of the consistency with the Convention arise, they must apply in every case.

Having carefully considered the points enumerated on behalf of the defenders, as set out by your Lordship in the chair, I am concerned only with the issue, firstly, of the lack of reasons for a jury's verdict and, secondly, the impact on the whole procedure of the appeal process currently enunciated in Girvan v. Inverness Farmers Dairy 1998 SC (HL) 1. The remaining points seem to me to be substantially procedural and if any question of unfairness is to be considered it could only be done so in the context of a review of a trial that has taken place. To anticipate unfairness as a matter of generality seems to me to have no logical or substantial base. It is to be assumed that a jury will be properly directed within the confines of the current practice of not giving precise figures or cases to direct themselves to the general question of what the assessment of solatium should be against the parameter of meanness on one end and excess on the other. Since the jury system is recognised as a means of assessing damages the parallel system of judicial assessment which has become more and more stereotyped by the increasing reference to decided cases is to my mind nothing to the point. The assessment of solatium in every case is an ad hoc judgment and there is no question, to my mind, but that the jury is an impartial Tribunal quite capable of making that assessment based on their own reaction to the evidence. However, the lack of reasons in the context of the present process of appeal raises a more difficult problem. The House of Lords in Girvan and in particular in the speech of Lord Hope of Craighead have restated or reinforced the traditional and long-standing approach that a court should take to assessing the validity of an award of solatium by a jury. By reference to such phrases as "grossly excessive" this seems to me to arise from that speech at page 6 particularly which states:

"It is clear that in order to warrant the application of the term 'excessive' the damages must be held to exceed not what the court might think enough but even that latitude which in a question of amount so very vague any set of reasonable men could be permitted to indulge. The excess must be such as to raise on the part of the court the moral conviction that the jury, whether from wrong intention or incapacity or some mistake, have committed gross injustice and have given higher damages than any jury, of ordinary men fairly and without gross mistake exercising their functions, could have awarded. It must be admitted that even in this sense there can be no definition of the term 'excessive' and indeed no form of expression can be well devised that does not leave this point somewhat vague and does not raise a kind of secondary jury question to be determined by the court".

The arguments of the defenders in this context present upon one view a strong position when faced up with that assessment and the lack of reasons for the jury's award.

I am not convinced that the lack of reasons per se invalidates the jury system in terms of the Convention since it is recognised by some European jurisprudence that reasons are not necessarily essential to the obtaining of a fair trial. But if the issue of lack of reasons is taken into the context of Girvan a much more difficult problem arises in the sense that it is highly arguable that a defender is effectively required to accept a jury's verdict without reasons because the parameters of appeal are so narrowly stated. It is significant that Lord Clyde in Girvan does not appear to go as far as Lord Hope in adopting the Victorian language of established cases and to my mind there is at least a stateable argument that in the context of 2002 the word "gross" is perhaps to be given a more broad meaning than the extreme position which applied to it in Victorian times. It also seems to me highly desirable that Girvan should be revisited in an appropriate case in the context of the Convention which did not of course feature at all in the arguments presented to the House of Lords at that particular time. In this context the case of McLeod v. British Railways Board 2001 S.C. 534 is not without significance.

In the final analysis therefore, in what I perceive to be a difficult problem, I do not consider that the issues that I have focused can be properly addressed save after an event at which it is claimed an unfair trial has taken place or in the context of an appeal which is said, on the present law, to prejudice the legitimate rights of the aggrieved defender. I therefore cannot conclude at this stage of the process that an allowance of issues is in itself contrary to Article 6 of the Convention.

In these circumstances sharing as I do the doubts expressed by Lord Hamilton in his Opinion as to whether this approach is not creating as many problems as it resolves, I would support the position of your Lordship in the chair as regards the advice to be given to the reporting judge.