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Cite as: [2004] ScotCS 115

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Jones v. Leslie [2004] ScotCS 115 (19 May 2004)

OUTER HOUSE, COURT OF SESSION

PD1155/03

OPINION OF T G COUTTS, QC

Sitting as a Temporary Judge

in the cause

ANGELA JONES

Pursuer;

against

M. K. LESLIE LIMITED

Defenders:

________________

Pursuer: M. Jack; Henderson Boyd Jackson, W.S.

Defenders: Laing; Simpson & Marwick, W.S.

19 May 2004

[1] The pursuer sues for damages as a result of a road traffic accident in which she was the victim. Liability is not admitted and there are pleas of sole fault and contributory negligence. So far matters are not particularly complicated. The pursuer's injuries are said to be extensive, physically and psychologically. She has various patrimonial loss claims. It was not suggested that these matters amounted to special cause for withholding the case from jury trial.

[2] The action was raised, as it had to be, in terms of chapter 43 of the Rules of Court. The pro forma summons in the Rules for such actions gives little guidance about pleading. The Rule was interpreted by the pursuer in this case to justify considerable specification of the physical and mental injury claimed to have been sustained. No claim in the summons was made in relation to alleged services in terms of section 8 of the Administration of Justice Scotland Act 1982 as amended.

[3] Adjustment of the pleadings concludes in terms of the rules at the same time as the pursuer is required to lodge a statement of valuation of claim. The pro forma for such a statement is found in Form 43.8. The only time that services claims are mentioned in the rules and forms is in that form. It invites details of dates, nature, daily rate and the person by whom the services were provided.

[4] In this action the only pleadings in relation to services are:-

"Her family have also provided necessary services to her. Details will be produced in a statement of valuation of claim".

[5] It will be noted that so far as the closed record is concerned specification of any services and, in particular, of any persons who rendered services is wholly lacking. There would be a strong argument that such pleading is totally irrelevant. In Kennedy v Lees of Scotland Ltd 1997 SLT 510 Lord Gill stated

"On her recovering damages from the defenders under section 8, the pursuer will come under an obligation to account each of the relatives who services an award is being made s. 8(2). In my opinion, this provision necessitates that the court should allocate the award under s. 8 among the relatives concerned so that the pursuer can know the extent of each of her obligations under s. 8(2)."

[6] I respectfully agree. In my opinion it is essential that the relatives for whom a claim is made should be specified in the pleadings so that everyone concerned including the relatives for whom an application is made know about the matter.

[7] Counsel for the pursuer claimed that the situation was saved by the statement of valuation of claim which does name two individuals. A statement of valuation of claim however, does not bind the party who makes it and does and cannot form part of the pleadings. While it is true that Lady Smith in the unreported case of Miller v Watt, (26 February 2004) was of the view that the statement of claim could be looked at at the time of a motion made for proof of jury trial, she did so on the basis that it could provide a useful indicator of whether complexity was likely to arise. She did not suggest that the statement of valuation of claim can form part of the pursuer's pleadings.

[8] The battle lines drawn between counsel at the motion in this case when the pursuer sought allowance of jury trial were simply concerned with the status of the statement of valuation of claim. The pursuer said it could and did form part of her pleadings, the defenders argued that it could not and that since there was no proper specification in the pleadings of the matter which it was proposed to put to a jury, special cause existed for refusing to grant the motion.

[9] The claim which is made for services rendered by a relative was originally introduced to correct what was seen to be a deficiency in the law whereby such persons could not receive any sum from a defender to represent increased trouble and expense that they had incurred in caring for a relative after an accident. In order to avoid a multiplicity of actions it was decided, by Parliament, that such claims be incorporated in the principal action at the instance of the pursuer. It always requires to be borne in mind, however, that the sum sued for under section 8 is not the pursuer's money and requires to be accounted for. It is accordingly essential that such relatives and the sums due to them be properly identified, not only for the interest of the defenders but also for the interests of the relatives themselves. This has not been done in the present case. I do not consider that the appearance of a name or names in the statement of valuation of claim form does more than indicate a person who at that time is alleged to be the provider of the services for which a claim is made.

[10] A statement of valuation of claim is not a statement of claim. That is underlined by a practice note referring to such matters which makes it plain that a statement of valuation of claim does not bind the pursuer or defenders Pleadings do. In the present case the pleadings in relation to this matter are totally unspecific and give no details about either the services or the relatives. In my opinion, the minimum necessity for the provision of proper notice and relevance is that the persons on whose behalf the claim is made should be specified in the pleadings. Since that has not been done, and it is a matter of startling simplicity, the pursuer's pleadings in this regard are so lacking in essential specification as to make the cause unsuitable for jury trial. An issue cannot be framed otherwise than precisely and in relation to pleadings in a Closed Record. So long as jury trial is to be sought by a pursuer in actions of this kind, there still remains the necessity to comply with the observations of Lord Justice Clerk Thomson in Bonner v Glasgow Corporation 1949 SC 254 where he stated that in the jury trial different considerations apply rather than to proof and that a properly drawn record is essential for jury trial and points at issue are to be clearly focused. It is not focused let alone clearly, in the pleadings which relatives, if any, are in entitled to be reimbursed by the pursuer after proof, and no issue on that matter can be framed or authenticated for a jury trial. No reason was given why the pursuer sought to avoid naming the relatives on the Record.

[11] I shall accordingly refuse the pursuer's motion to allow a jury trial in the state of the pleadings in this case.