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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 175

OPINION OF LORD KINCLAVEN

in the cause

ALLAN MCLEAN STRANG

and OTHERS

Pursuers;

against

CHURCHILL INSURANCE COMPANY LIMITED

Defenders:

________________

Pursuers: McGregor; HBM Sayers

Defenders: Anderson, QC; DLA

15 November 2006

Introduction

[1] This is an action for personal injuries under chapter 43 of the Rule of the Court of Session.

[2 ] It concerns a road traffic accident on the A75 Gretna to Stranraer road on 6 October 2003. The accident resulted in the death of the late Moira Jean Strang.

[3 ] There are six pursuers.

[4 ] Liability is admitted.

[5 ] The case came before me on the motion of the pursuers "to allow issues for Jury Trial in terms of Rules of Court 43.6(5)(c)"

[6 ] The motion was oppose by the defenders who contended that "This case is not suitable for jury trial."

[7 ] Mr McGregor appeared for the pursuers. Mr Anderson QC appeared for the defenders.

[8 ] In outline, the defenders argued that special cause existed for withholding the cause from jury trial. Essentially the defenders' arguments were based on two features of the pursuers' case, namely:-

(1) alleged difficulty in assessment and specification of the claims; and

(2) the fact that the defenders are insurers of the driver concerned.

[9 ] The pursuers argued that there was no special cause.

[10 ] For the reasons outlined below, I was not satisfied that special cause exists for withholding this cause from trial by jury.

[11 ] The pursuers' arguments prevail.

[12 ] I shall allow issues.

The Pleadings

[13 ] The submissions of counsel require to be seen in context as follows.

[14 ] The parties' pleadings are contained in the Record No 17 of Process.

[15 ] All of the pursuers seek damages with interest from 6 October 2003 plus expenses.

[16 ] The sums sued for by the six pursuers are, respectively:-

1. £400,000

2. £100,000

3. £150,000

4. £150,000

5. £ 50,000

6. £ 50,000

[17 ] The first pursuer is Allan McLean Strang. His date of birth is 6 November 1961. He married Moira Jean Strang ("the deceased") on 30 May 1987. The deceased died on 6 October 2003. There are three children of the marriage, namely the second, third and fourth pursuers who reside with the pursuer. The second pursuer is Philip Adair Strang who was born on 23 March 1988. The third pursuer is Peter Robert Strang whose date of birth is 2 November 1990. The fourth pursuer is Gareth Allan Strang whose date of birth is 21 September 1992. The fifth Pursuer is the mother in law of the deceased. The sixth pursuer is the mother of the deceased.

[18 ] The defenders are Churchill Insurance, a company incorporated under the Companies Acts and having a place of business in Kent.

[19 ] The pursuers' averments, in Article 2 of Condescendence, include the following:-

"The Pursuers have a right of action in delict against Robert David O'Raw arising out of a road traffic accident on 6 October 2003. At the time of the accident Robert David O'Raw was driving vehicle registration number M621 VHK. Said vehicle is normally based within the United Kingdom. The Defenders issued a policy of insurance which fulfils the requirements of Section 145 of the Road Traffic Act 1988 in respect of the said vehicle. In terms of Section 3 of the European Communities (Rights against Insurers) Regulations 2002, the Pursuers are entitled to issue proceedings against the Defenders."

[20 ] It is admitted that this court has jurisdiction to hear this claim against the defenders. The harmful event giving rise to the claims occurred in Scotland.

[21 ] Article 4 of Condescendence for the pursuers is as follows:-

"On or about 6 October 2003 at or about 1.05 pm the deceased was driving her car, a Citroen ZX registration number P544 FOH on the A75 Gretna to Stranraer Road at Mains of Park Cottages. Robert David O'Raw was driving a Ford Mondeo registration number M621 VHK in the opposite carriageway. Suddenly and without warning Robert David O'Raw's car crossed from its carriageway and struck the deceased's car head on. As a result of the said collision the deceased suffered fatal injuries. In consequence thereof the pursuers have suffered loss, injury and damage. On 19 January 2005 Robert David O'Raw was convicted at the High Court of a contravention of Section 1 of the Road Traffic Act 1988 as a result of his driving. An extract of the conviction is produced."

[22 ] The averments relating to said accident are admitted.

[23 ] For the purposes of the present action only the Defenders admit liability to make reparation to the Pursuers for the loss, injury and damage sustained by them as a result of the death of the deceased.

[24 ] For present purposes I propose to consider:-

1. the legislation and Rules of Court;

2. the positions adopted by the parties; and

3. the issues under discussion.

Legislation and Rules of Court

[25 ] It might be helpful to summarise some of the relevant provisions as follows.

The European Communities (Rights against Insurers) Regulations 2002

[26] As noted above, the pursuers aver in Article 2 of Condescendence that they are entitled to issue proceedings against the defenders in terms of The European Communities (Rights against Insurers) Regulations 2002 (SI 2002 No. 3061) (hereinafter referred to as "the 2002 Regulations"). Those Regulations came into force on 19th January 2003.

[27 ] The 2002 Regulations give effect to Article 3 of the Fourth Motor Insurance Directive, and confer on residents of the 15 Member States a new right to issue proceedings against the insurer of the person responsible for an accident in the UK.

[28] In relation to "Interpretation" Regulation 2(1) provides inter alia that:-

"'the 1988 Act' means the Road Traffic Act 1988 ;

'accident' means an accident on a road or other public place in the United Kingdom caused by, or arising out of, the use of any insured vehicle;

'entitled party' means any person who is - (a) a resident of a Member State; ...

'insured person' means a person insured under a policy of insurance satisfying the conditions set out in paragraph (3) of this regulation;

'vehicle' means any motor vehicle intended for travel on land and propelled by mechanical power, but not running on rails, and any trailer whether or not coupled, which is normally based (within the meaning of paragraph (2) of this regulation) in the United Kingdom."

[29] Regulation 2(2) provides inter alia that:-

"The territory in which a vehicle is normally based is -

(a) the territory of the State of which the vehicle bears a registration plate; or

(b) in cases where no registration is required for the type of vehicle, but the vehicle bears an insurance plate or a distinguishing sign analogous to a registration plate, the territory of the State in which the insurance plate or the sign is issued; or

(c) in cases where neither registration plate nor insurance plate nor distinguishing sign is required for the type of vehicle, the territory of the State in which the keeper of the vehicle is permanently resident."

[30 ] Regulation 2(3) provides that:-

"For the purposes of these Regulations, a vehicle is insured if there is in force in relation to the use of that vehicle on a road or other public place in the United Kingdom by the insured person a policy of insurance (including a covering note) which fulfils the requirements of section 145 of the 1988 Act or article 92 of the 1981 Order ."

[31] In particular, Regulation 3 relates to "Right of action" and provides inter alia that:-

"(1) Paragraph (2) of this regulation applies where an entitled party has a cause of action against an insured person in tort or (as the case may be) delict, and that cause of action arises out of an accident.

(2) Where this paragraph applies, the entitled party may, without prejudice to his right to issue proceedings against the insured person, issue proceedings against the insurer which issued the policy of insurance relating to the insured vehicle, and that insurer shall be directly liable to the entitled party to the extent that he is liable to the insured person."

The Court of Session Act 1988

[32] Section 11 of the Court of Session Act 1988 provides inter alia:-

"Subject to section 9(b) of this Act, the following actions if remitted to probation shall be tried by jury -

(a) an action of damages for personal injuries."

[33] Section 9 of the 1988 Act provides inter alia:-

"The Lord Ordinary may allow a proof -

(a) in any action, other than an action enumerated in section 11 of this Act, without the consent of both parties and without reporting to and obtaining the leave of the Inner House;

(b) in any action enumerated as aforesaid, if the parties to the action consent thereto, or if special cause is shown".

The Administration of Justice Act 1982

[34 ] Section 7 of the Administration of Justice Act 1982 provides:-

"Where a person (in this part of this Act referred to as 'the injured person') -

(a) has sustained personal injuries, or

(b) has died in consequence of personal injuries sustained,

as a result of any act or omission of another person giving rise to liability in any person (in this part of this Act referred to as 'the responsible person') to pay damages, the responsible person shall also be liable to pay damages in accordance with the provisions of sections 8 and 9 of this Act".

[35] Section 8(1) of the 1982 Act provides:-

"Where necessary services have been rendered to the injured person by a relative in consequence of the injuries in question, then, unless the relative has expressly agreed in the knowledge that an action for damages has been raised or is in contemplation that no payment should be made in respect of those services, the responsible person shall be liable to pay to the injured person by way of damages such sums as represents reasonable remuneration for those services and repayment of reasonable expenses incurred in connection therewith".

[36] Section 9 of the 1982 Act provides inter alia:-

"(1) The responsible person shall be liable to pay to the injured person a reasonable sum by way of damages in respect of the inability of the injured person to render the personal services referred to in subsection (3) below.

(2) .....

(3) The personal services referred to in subsections (1) and (2) above are personal services -

(a) which were or might have been expected to have been rendered by the injured person before the occurrence of the act or omission giving rise to liability,

(b) of a kind which, when rendered by a person other than a relative, would ordinarily be obtainable on payment, and

(c) which the injured person, but for the injuries in question, might have been expected to render gratuitously to a relative. ..."

The Rules of Court

[37] Rule of Court 43.2 provides inter alia:-

"(1) The summons shall be in Form 43.2-A and there shall be annexed to it a brief statement containing -

(a) averments and numbered paragraphs relating only to those facts necessary to establish the claim; ..."

[38] Rule of Court 43.9 provides inter alia:-

"(1) Each party to an action shall make a statement of valuation of claim in Form 43.9.

(2) A statement of valuation of claim (which shall include a list of supporting documents) shall be lodged in process. ..."

[39] The Annotated Rules of Court also provide a style of a statement of claim, indicating the nature of the kind of brief averments which are to relate only to those facts necessary to establish the claim.

[40] Practice Note 2 of 2003 provides, under the heading "Rule 43.9 - Statement of Valuation of Claim", inter alia:-

"The statements of valuation required by this rule are not binding upon the parties who make them. It is, however, intended that these statements should reflect a real assessment of the value of the claim and accordingly it will be open to either party to found upon the making of its own statement of valuation or upon that of the other party".

[41 ] I turn now to consider the position of the parties.

The Position of the Parties

The pursuers' position

[42 ] Article 5 of Condescendence can be divided up into separate sections one for each of the six pursuers.

[43 ] Each pursuer has lodged a Statement of Value of Claim.

[44 ] The first, second, third and fourth defenders have also provided a supporting list of documents.

[45 ] In relation to quantum of damages, the position for each of the six pursuers might be summarised as follows.

The First Pursuer's position

[46 ] In Article 5 of Condescendence, the first pursuer seeks damages under the following heads of claim:

"(a) Section 1(4) of the Damages (Scotland) Act 1976 as amended.

The first pursuer and the deceased enjoyed a close and loving relationship. The first pursuer suffered grief and sorrow caused by his wife's death. He has lost the benefit of her society. The first pursuer became depressed and low in mood. The first pursuer suffers from diabetes. His control thereof has suffered following his wife's death.

(b) Section 1(3) of the Damages (Scotland) Act 1976 as amended.

The first pursuer is employed as a Senior Biomedical Scientist at Carrick Hospital, Stranraer. His employers are Dumfries and Galloway Health Board. He earns about £24,250 net per annum. The deceased was working part-time at the time of her death. She was employed as an education assistant by Dumfries and Galloway Council. The deceased had a BA in Business Administration and a Post Graduate qualification in Personnel Management. She was skilled at data processing. Prior to the birth of her first child the deceased was employed as an Immigration Officer at Heathrow Airport. It was the intention of the deceased that she would return to full time employment when her youngest child commenced secondary education. It is likely that she would have obtained full time employment in administration in local government or as a civil servant. Her earnings as an administrator in 2004 would have been about £19,104 net per annum. In 2005 the deceased would have earned as an administrator about £19,620 net per annum. The deceased would have earned more as a civil servant. The deceased's earnings would have increased. The first pursuer claims for funeral expenses incurred by him in respect of the deceased's funeral at a cost of £2,335.90.

(c) Personal services rendered to the first pursuer which have been lost and will be lost in the future. The deceased attended to most of the household chores, including cooking, cleaning, laundry, shopping, housework and cleaning of windows. She provided most of the childcare. The first pursuer employed a cleaner on a twice weekly basis for a short period following the deceased's death, details of the cost thereof will be produced."

[47 ] The Statement of Value of Claim for the first pursuer, Allan Strang, is No 11 of Process. I need not rehearse full details. It is broadly along the following lines:-

Section 1(4)

The first pursuer's Section 1(4) claim is for £25,000 for the past and £25,000 for the future. Interest is sought on the past award at 4% p.a. from 6 October 2003.

Section 1(3)

(a) Loss of Financial Support

In relation to his Section 1(3) claim the first pursuer seeks loss of financial support from approximately September 2004. In assessing this head of claim, the first pursuer estimates likely joint income, deducts 25% for the deceased's own maintenance and then deducts the first pursuer's earnings to produce figures for net loss of annual financial support. Multipliers for the Ogden Tables are applied. Loss of support is apportioned (a) 75% to the first pursuer and (b) 25% to the second, third and fourth pursuers.

(b) Funeral expenses

The first pursuer claims funeral expenses of £2,335.90 with interest at 8% p.a. from 11 November 2003.

(c) Section 9 personal services

In relation to section 9 personal services an Ogden multiplier is applied. Past domestic/housekeeping services are stated to be based on 35 hours per week. Interest at 4% is sought from 6 October 2003. Future services are based on 28 hours per week from 23 March 2006, 21 hours per week from 2 November 2008 and 7 hours per week from 21 September 2010. Services are apportioned 75 % to the first pursuer and 25% to children until age 18 - all as set out in more detail in the Statement of Value of Claim for the first pursuer.

The Second Pursuer's position

[48 ] In Article 5, the second pursuer seeks damages under the following heads of claim:

"(a) Section 1(4) of the Damages (Scotland) Act 1976 as amended.

The second pursuer has suffered grief and sorrow caused by the deceased's death. He has been deprived of the society and guidance of his mother at a young age.

(b) Section 1(3) of the Damages (Scotland) Act 1976 as amended.

(c) Personal services rendered to the second pursuer which have been lost and will be lost in the future. The deceased looked after the second pursuer's care. The deceased did the second pursuer's laundry. She prepared and cooked all his meals. She attended to his shopping needs. She cleaned his room. She helped with homework. She supervised activities. She organised extra-curricular activities."

[49 ] The Statement of Value of Claim for the second pursuer, Philip Strang, is No 12 of Process. It is broadly along the following lines:-

Section 1(4)

The second pursuer's Section 1(4) claim is for £15,000 for the past and £15,000 for the future. Interest is sought on the past award at 4% p.a. from 6 October 2003.

Section 1(3)

(a) Loss of Financial Support

The second pursuer seeks loss of financial support under reference to the Statement of Value for the first pursuer. Apportionment of loss of support is 75% to the first pursuer and 25% to the second, third and fourth pursuers according to their years of dependency until age 21. In relation to past loss, the balance of past loss for the three children is apportioned equally as all are dependent during that period. The second pursuer's future dependency is taken as being 2.91 years.

(b) Section 9 personal services

Section 9 personal services are claimed for domestic/housekeeping services and childcare services (under reference to a report form Jan Hansen). Past Services are calculated under reference to the Statement of Value for the first pursuer. Interest is sought on past services at 4% from 6 October 2006. The statement of value in relation to "Past childcare services for second pursuer" specifies particular figures for particular periods such as:-

"To 31.5.05 £4,224.97".

The Third Pursuer's position

[50 ] In Article 5, the third pursuer seeks damages under the following heads of claim:

"(a) Section 1(4) of the Damages (Scotland) Act 1976 as amended.

The third pursuer has suffered grief and sorrow caused by the deceased's death. He has been deprived of the society and guidance of his mother at a young age.

(b) Section 1(3) of the Damages (Scotland) Act 1976 as amended.

(c) Personal services rendered to the third pursuer which have been lost and will be lost in the future. The deceased looked after the third pursuer's care. The deceased did the third pursuer's laundry. She prepared and cooked all his meals. She attended to his shopping needs. She cleaned his room. She helped with homework. She supervised activities. She organised extra-curricular activities."

[51 ] The Statement of Value of Claim for the third pursuer, Peter Strang, is No 13 of Process. It is broadly along the following lines:-

Section 1(4)

The third pursuer's Section 1(4) claim is also for £15,000 for the past and £15,000 for the future. Interest is sought on the past awards at 4% p.a. from 6 October 2003.

Section 1(3)

(a) Loss of Financial Support

The third pursuer also seeks loss of financial support under reference to the Statement of Value for the first pursuer. He does so essentially along the same lines as the Statement of Value for the second pursuer. The third pursuer's future dependency is taken as being 4.6 years.

(b) Section 9 personal services

Section 9 personal services are also claimed for domestic/housekeeping services and childcare services (under reference to the report form Jan Hansen). Past Services are calculated under reference to the Statement of Value for the first pursuer. Interest is sought on past services at 4% from 6 October 2006. The statement of value in relation to "Childcare services for the third pursuer" specifies particular figures for particular periods, such as:-

"Past services to 31.5.05 £5,563.63 ..." and

"Future services to 1.11.08

Approx £3.696 to 1.11.06

then £8,293.84 ..."

The Fourth Pursuer's position

[52 ] In Article 5, the fourth pursuer seeks damages under the following heads of claim:

"(a) Section 1(4) of the Damages (Scotland) Act 1976 as amended.

The fourth pursuer has suffered grief and sorrow caused by the deceased's death. He has been deprived of the society and guidance of his mother at a young age.

(b) Section 1(3) of the Damages (Scotland) Act 1976 as amended.

(c) Personal services rendered to the fourth pursuer which have been lost and will be lost in the future. The deceased looked after the fourth pursuer's care. The deceased did the fourth pursuer's laundry. She prepared and cooked all his meals. She attended to his shopping needs. She cleaned his room. She helped with homework. She supervised activities. She organised extra-curricular activities."

[53 ] The Statement of Value of Claim for the fourth pursuer, Gareth Strang, is No 14 of Process. It is broadly along the following lines:-

Section 1(4)

The fourth pursuer's Section 1(4) claim is also for £15,000 for the past and £15,000 for the future. Interest is sought on the past awards at 4% p.a. from 6 October 2003.

Section 1(3)

(a) Loss of Financial Support

The fourth pursuer also seeks loss of financial support under reference to the Statement of Value for the first pursuer. He does so essentially along the same lines as the Statement of Value for the second and third pursuers. The fourth pursuer's future dependency is taken as being 6.35 years.

(b) Section 9 personal services

Section 9 personal services are also claimed for domestic/housekeeping services and childcare services (under reference to the report from Jan Hansen). Past Services are calculated under reference to the Statement of Value for the first pursuer. Interest is sought at 4% from 6 October 2006. The statement of value in relation to "Childcare services for the fourth pursuer" also specifies particular figures for particular periods, such as:-

"Past services to 31.5.05 £7,418.18 ..." and

"Future services to 20.9.10

Approx £15,739 to 20.9.08

then £8,293.84 ..."

The Fifth Pursuer's position

[54 ] In Article 5 the fifth pursuer seeks damages under Section 1(4) of the Damages (Scotland) Act 1976 as amended for the grief and sorrow caused by the deceased's death. She has been deprived of the society and guidance of her daughter-in-law.

[55 ] The Statement of Value of Claim for the fifth pursuer, Euphemia Strang, is No 15 of Process. The section 1(4) claim is for £5,000 for the past and £5,000 for the future. As for the other pursuers, interest is sought on the past awards at 4% p.a. from 6 October 2003.

The Sixth Pursuer's position

[56 ] The sixth pursuer seeks damages under Section 1(4) of the Damages (Scotland) Act 1976 as Amended for the grief and sorrow caused by the deceased's death. She has been deprived of the society and guidance of her daughter.

[57 ] The Statement of Value of Claim for the sixth pursuer, Sarah Adair, is No 16 of Process. The section 1(4) claim is for £5,000 for the past and £5,000 for the future. As for the other pursuers, interest is sought on the past awards at 4% p.a. from 6 October 2003.

Answer 5

[58 ] In Answer 5 the Defenders aver, inter alia:-

"Explained and averred that the sums sued for are excessive. Given the ages of the children and the deceased's medical history of anxiety and depression it is unlikely that the deceased would have been able to enjoy full time employment."

[59 ] I now turn to summarise the submission of counsel.

The Submissions for the Defenders

[60 ] Counsel for the defenders submitted that special cause existed for withholding the case from jury trial.

[61 ] There were, in essence, two points. One point related to alleged difficulty in assessment and specification of the claims. The other related to the fact that the defenders were insurers.

Assessment and Specification of the Claims

[62 ] As noted above, Mr Anderson argued that there were difficulties in assessment and specification of the claims.

[63 ] The pleadings and the various Statements of Claim were referred to in some detail.

[64 ] It was argued that, despite the Statements of Value, what was left to go to the jury was only what appears in the pleadings.

[65 ] Reference was made to Higgins v DHL 2003 SLT 1301 particularly at paragraphs 3, 23, 24, 28 and 29. There should be no unresolved questions of relevancy or specification in any question going before a jury. There was no room for a "trial before answer" - Moore v Alexander Stephen and Sons Ltd 1954 SC 331 at 334.

[66 ] The requirement of fair notice remains.

[67 ] It was suggested that fair notice was not given in the present case.

[68 ] The pleadings might be apt to go to proof before a judge but not a jury.

[69 ] The pursuers require to give "old style" specification of loss in order to get a jury trial.

[70 ] The pursuer could seek to have the cause remitted to the Ordinary Roll.

[71 ] It was not clear what was meant by the cost of "child care".

[72 ] There was not enough specification on Record.

[73 ] It was accepted that the claims under section 1(4) and 1(3) were not, in themselves, sufficient to justify refusing issues but the services claims in the present case were not sufficiently specific.

Insurers

[74 ] Mr Anderson also argued that the fact that the defenders were insurers was, in itself, sufficient to justify withholding the case from a jury.

[75 ] For the best part of a century, it was submitted, the practice has been to disapprove of reference to insurance arrangements.

[76 ] Mr Anderson referred to Stewart v Duncan 1921 S.C. 482 which was commented upon in Dale McFarlane v Barry Thain and Others [2006] CSIH 3.

[77] In the present case, the pursuers had created a hurdle for themselves - unnecessarily. They could have sued the driver direct but they opted to sue the insurers.

[78 ] The fear was that a jury may fail to do justice in an even-handed way between the parties because of a belief that the defenders can afford whatever they decide to award.

[79 ] Mr Anderson suggested that it would be a lot to ask a jury to disregard the fact that the payer is a major insurance company and that it would be extraordinary if the jury were able to leave that out of account.

[80 ] Even if there is no blanket prohibition, it would be inappropriate to allow issues where the pursuers have chosen, all other things being equal, to sue the insurers direct.

[81 ] If a pursuer wishes to obtain a jury trial then the appropriate way is to sue the wrongdoer direct.

[82 ] In general terms it remains undesirable for reference to be made to insurance arrangements unless there is good reason.

[83 ] There is no good reason in the present case.

[84 ] The pursuers have simply chosen to sue the insurers.

[85 ] The defenders were not in a position to say what the pursuers' motives were but that matters not.

[86 ] The defenders have been deliberately chosen.

[87 ] The case of Stewart remains good law.

[88 ] It would be surprising if ordinary individuals were able to put to one side the ability of the defenders to pay.

[89 ] That would remain the case, suggested the defenders, even if the jury were to be given directions by the court to ignore ability to pay.

The Submissions for the Pursuers

[90] Counsel for the pursuers invited me to allow issues.

[91] Mr McGregor responded to the defenders points as follows.

Assessment and Specification of the Claims

[92] Mr McGregor submitted that there was sufficient within the body of the Record to provide fair notice to the defender.

[93] In any event, in order to gauge fair notice it is appropriate to look to the Statements of Value.

[94] Having regard to the Statements of Value, the pursuers had provided more specification than would be found in an "old action".

[95] The current position was best encapsulated in the opinion o f Lord Wheatley in David May v Jeeves Parcels Limited t/a ANC (Aberdeen) and Others [2005] CSOH 71.

[96] Regard has to be had to the Statement of Value in determining whether the pursuers' case is specific enough.

[97] Mr McGregor also referred to Mark Easdon v A Clarke & Company (Smithwick) Limited [2006] CSOH 12.

[98] In the present case, the defenders have been given fair notice.

[99] The Statements of Value married up with the Record.

[100] The meaning of the cost of "child care" was reasonably clear. It was the cost of caring for a child.

[101] In any event, the report from Jan Hansen Consultancy Service had been lodged by the pursuers as Production No 6/9 of Process.

[102] That report included "maternal support costs".

[103] The organisational activities provided by a mother fall within section 9 personal services.

[104] Higgins v DHL 2003 SLT 1301 fell to be distinguished. It involved problems with averments on liability which are not present in this case.

[105] Each case depends on its own particular facts.

[106] In the present case, submitted Mr McGregor, there is fair notice.

[107] The court is entitled to consider both the Record and the Statements of Value.

[108] There is more detail there than would be found in an ordinary action.

Insurers

[109] Mr McGregor submitted that there was no attempt on the part of the pursuers to unduly influence the jury. There was no foundation for any such inference.

[110] The pleading make clear the basis upon which the defenders have been convened as defenders.

[111] It was not the pursuers' "purpose" to unduly influence a jury.

[112] The pursuers are exercising their statutory right under the 2002 Regulations to sue the insurers directly.

[113] That was the simplest way forward.

[114] Reference was also made to the Opinion of the Court in the McFarlane case.

[115] In the present case, the insurance position is not irrelevant.

[116] Nor is it prejudicial.

[117] Members of the public now expect drivers to have insurance.

[118 ] In the result, so submitted the pursuers, the defenders had failed to show special cause for withholding the case from jury trial.

Discussion

[119] As outlined above, the factors which the defenders founded upon in support of the proposition that were essentially:-

(1) alleged difficulty in assessment and specification of the claims; and

(2) the fact that the defenders are insurers of the driver concerned.

[120] I have taken into the account the competing submissions from the pursuers' counsel and from the defenders.

[121] I have also had regard to the cases referred to by counsel.

[122] In my view, the principal authorities might be summarised under the headings of "Assessment and Specification" and "Insurers" as follows.

Assessment and Specification

David May v Jeeves Parcels Limited t/a ANC (Aberdeen)

[123] David May v Jeeves Parcels Limited t/a ANC (Aberdeen) [2005] COSH 71 is a decision of Lord Wheatley dated 3 June 2005.

[124] In that case Lord Wheatley said inter alia:-

"[6] The authorities commonly used in debates on this topic are also well known. In terms of the relevant sections of the Court of Session Act 1988 cited above, the defenders have to demonstrate special cause as to why the case should be withheld from a jury. Lord Justice Clerk Thomson in Boyle v Glasgow Corporation 1949 S.C.254 (at 261) made it clear that a properly drawn record is essential in a jury trial, and Lord Gill (as he then was) in O'Malley v Multiflex (UK) Inc 1995 S.C.L.R.1143 (at 1145D) suggested that a useful test in this area was whether on the pursuers' pleadings 'adequate and effective directions could be given to, and applied by, the jury on the contentious question'. In more general terms I think it is accepted that for the defenders to establish that special cause exists in any particular case for withholding the cause from trial by jury, the speciality must be something which applies to the particular case in question. If there is no such special cause, the case must be sent for trial by jury.

[7] There is no doubt that a critical lack of specification in the pursuer's pleadings on any particular point of significance or materiality may amount to a special cause in terms of section 9(b) of the Court of Session Act 1988. However, a mere failure on the part of a pursuer to provide what is said to be a satisfactory level of detailed averments on a particular aspect of the claim will not necessarily lead to the conclusion that the case would more suitably be heard by a judge, rather than by a jury. A special cause in terms of the section cited above, of such significance that it has the effect of depriving a litigant of what Parliament has decided is his statutory right to have his case tried, and his damages assessed, by a jury, must clearly be based on weighty and material considerations. In addition, regard must be had to the nature of the pursuer's claim. In any given case, for example, the pursuer's averments may allow the judge to direct the jury that a particular head of damages can be considered for the provision of an award, on the basis of detailed figures found in the pleadings and in the statement of valuation of claim. Again, the averments in the pursuer's pleadings, supported by any detail that might be found in the statement of valuation of claim, may be sufficiently specific only to allow an award to be made in general terms, perhaps over any period that may be indicated. ...

[8] In the present case, what is said on record should give a sufficient indication of the nature and extent of the pursuers' claims in terms of sections 8 and 9 of the Administration of Justice Act 1982 to allow directions by the judge to be given to a jury. In particular, the judge is entitled to understand from the pleadings what services are to be provided, who is to provide those services, and for how long the services will be required. He should be placed in a position that he can indicate, at least in general terms, what amounts of money may be involved in the provision of those services. ... If the judge is able to give appropriate directions to the jury from an examination of the pleadings in this fashion, then any claims by the defenders that they have not been given sufficient notice about the nature of the claim should not succeed. More significantly, in that situation there is unlikely to be any evident special case which would justify the case being withheld from trial by jury. ...

[16] ... Claims under section 9 (as noted by Lord Eassie in the case of Scott v Vieregge (unreported) 27 March 2005) are largely jury matters and specific figures in either the pleadings or the valuation claim form may not be necessary or appropriate. In respect of section 8 claims no doubt some degree of specification is desirable, but again if the pursuer declines to provide a detailed claim for any particular item, I can see in principle no reason why the judge cannot direct the jury to provide a general overall figure for that particular head of claim, for as long as they think it will be required, as opposed to a precisely calculated figure which depends on specific rates and times. In terms of Chapter 43 of the Rules of Court, which apply to these cases, the pleadings need only be the barest or briefest of statements as to what the claim consists of. Provided these statements allow the judge to tell the jury what the various parts of the claim are, and at least in general terms how the valuation of those claims should be approached, there would appear to be no reason to withhold the case from a jury. ..."

[125] In the particular circumstances of the May case, Lord Wheatley refused the defenders' motion and allowed issues.

[126] In my opinion, having regard to the circumstances (which I have outlined in some detail above) a similar conclusion falls to be reached in the present case.

[127] The defenders, in my view, have been provided with fair notice of the case which they require to meet.

[128] The pursuers' averments, supplemented by the more detailed information in the Statements of Value, are in my opinion sufficiently relevant and specific to enable the court to deal with objections and to provide the jury with adequate direction at a trial.

[129] I am not satisfied that there is any special cause such as would justify withholding this case from a jury.

[130] I am also re-enforced in that conclusion by the other case of Mark Easdon v A Clarke & Company (Smithwick) Limited.

[131] I would summarise the relevant parts of that case as follows.

Mark Easdon v A Clarke & Company (Smithwick) Limited

[132] Mark Easdon v A Clarke & Company (Smithwick) Limited [2006] CSOH 12 is a decision of Lord Kingarth dated 25 January 2006.

[133] The pursuer averred that he suffered inter alia fractures of his cervical spine, resulting in tetraplegia, motor and sensory complete at C5 level and a number of significant physical defects. The sum sued for was £8 million.

[134] In that case the defenders submissions were inter alia as follows. Although ultimately it was accepted that if it was permissible to look at the statement of valuation it could not be said that adequate notice had not been given, it was inappropriate to use the statement in that way. It was not part of the pleadings, and was not binding on the parties. Reference was made to Practice Note No. 2 of 2003, and to the opinion of Temporary Judge T G Coutts, QC in Jones v M K Leslie Limited (19 May 2004). It was accepted that the opinions of Lady Smith in Millar &c v Watt &c (26 February 2004) and Lord Wheatley in May v Jeeves Parcels Limited (3 June 2005) appeared to be to the contrary effect. The decision of Lord Eassie in Scott &c v Vieregge (22 March 2005) was more equivocal. Further, and in any event, the defenders in the Easdon case argued that the claim gave rise to obvious potential complexity in a number of respects, such as to make the case unsuitable for trial by jury. Reference was made to Sowden v Lodge 2005 1 All ER 581, and Potts v McNulty 2000 SLT 1269.

[135] The pursuer's submission in Easdon was essentially that the case was suitable for jury trial. A plea as to lack of specification went to the question of fair notice, and that would arise whether the case was heard by a judge or by a jury. Reference was made to Currie v Strathclyde Regional Council Fire Brigade 1999 SLT 62. Adequate specification had been given in the pleadings, when looked at along with the statement of valuation. There was no reason why the latter should not be looked at in this context. It was not part of the pleadings, but it required to be lodged, and its supporting reports listed and made available to the other party. Any attempt to lead evidence different from underlying factual material referred to within in it could readily be objected to. If this was wrong there would be a need to return to old-style pleadings. Senior counsel in the Easdon case would, if necessary, seek leave to amend to include all the factual material contained within the statement of valuation. The decision of the Temporary Judge in Jones v M K Leslie Limited could be distinguished. Otherwise the balance of the Outer House authority referred to appeared to support the pursuer's contention. In any event, the pursuer argued that the case did not give rise to complexities which made it unsuitable for trial by jury. The number (and value) of the claims was not enough to prejudice the pursuer's right.

[136 ] In Easdon, Lord Kingarth said inter alia:-

"[11] ... it became clear in the course of submissions that if the statement of valuation could be taken account of in this connection, the defenders would not seek to maintain their argument on lack of specification. The issue thus narrowed to an important point of apparent general application.

[12 ] It seems clear that the balance of Outer House authority thus far tends to suggest that statements of valuation can be looked at in this context (and this, I note, was accepted by counsel for the defenders in Higgins v DHL International (UK) Limited). Both counsel before me were agreed, however, that in none of the cases referred to was it necessary for the matter to be fully explored and it was observed by Lord Eassie in Scott &c v Vieregge that statements of valuation, while no doubt primarily intended to aid settlement, were "of perhaps an uncertain status." With that observation I would respectfully agree.

[13 ] Nevertheless, while it seems clear that statements of valuation could not be said to form part of the pleadings (despite what was argued on behalf of the pursuer in Jones v M K Leslie Limited), and while the basic relevance of the claim or claims made may still require to be tested by the pleadings, I see no good reason why regard should not be had to such statements in any question of whether fair notice has or has not been given of the detail of claims made.

[14 ] Under the new Rules it seems clear that not much detail is required to establish the basic relevance of claims. Rule 43.2(1)(a) refers to a brief statement containing averments 'relating only to those facts necessary to establish the claim.' It might be thought that these words would apply to the clause or claims for damages as well as to the merits, but the indications within Form 43.2A (which is the form for the Summons) are that these words apply to the merits of the claim. One paragraph of the form requires the pleader to 'state briefly the facts necessary to establish the claim'. In a separate paragraph it is provided that the summons should 'state briefly the personal injuries suffered and give names and addresses of medical practioners and hospitals or other institutions in which the person injured received treatment.' Although the form of summons does not, perhaps surprisingly, refer to heads of claim arising out of the personal injuries suffered, one example of a statement of claim given in the Supplementary Report of the Working Party on Court of Session Procedure, which is reprinted in the notes to the Rules of Court, includes a numbered paragraph in which the heads of claim are itemised (with a suggestion that amounts claimed could be inserted, if known).

[15 ] All of this would seem entirely consistent with the apparent wishes of the Working Party, referred to in Practice Note No. 2 of 2003, that: 'Essentially therefore, we agree what is necessary is a method of pleading which encourages brevity and simplicity and discourages technicality and artificiality'. In addition, however, there is specific provision in Rules of Court 43.9 and 43.6(1), for the making and lodging in process by each party of a statement of valuation of claim, and that by particular prescribed dates. No doubt the main purpose of this requirement is to aid settlement of claims, but it seems clear that in addition to the valuations made it is envisaged that further factual information will be provided. Form 43.9 (the form for such statements) envisages, for example, detail being added as to the date from which wage loss is claimed, and as to the rate claimed. Provision is made also, for example, for information as to the 'nature of services', and as to the person by whom services are provided and the hours per week. In short, it seems clear that it is anticipated that the basic factual averments made in any summons will be supplemented by further factual detail in the statement of valuation. In addition of course each statement of valuation is required to include a list of supporting documents, which are to be available for inspection by the other party (Rule 43.9(2)-(5))."

[16 ] Practice Note No. 2 of 2003 states (in relation to Rule 43.9):

'The statements of valuation required by this rule are not binding upon the parties who make them. It is, however, intended that these statement should reflect a real assessment of the value of the claim and accordingly it will be open to either party to found upon the making of its own statement or valuation or upon that of the other party'.

Given the primary purpose of such statements, it is, in my view, not unreasonable to read the first sentence above as primarily intended to relate to the valuations put by either party on the claim, or elements of the claim, (so that, for example, in light of the evidence ultimately led, neither is barred from suggesting a higher or lower assessment). On the other hand, I see no good reason why one party should not be able to 'found upon' the statement made by the opposing party by objecting to any attempt to introduce evidence which would conflict with any basic factual information set out. Indeed, I would expect any court faced with such an objection to proceed on the basis that the other party was reasonably entitled to regard such a statement as giving notice of the case they should prepare to meet. In the course of the debate before me counsel for the defenders appeared to accept that the pursuer's statement of valuation could be so founded upon. If that is so, it seems to me to be illogical and unrealistic to argue that such a statement should not be looked at at this stage in judging the question of fair notice. Although counsel was concerned that such an objection might not be so readily determined in the course of a jury trial as in a proof, I am not persuaded that that should be so. By contrast, I agree with senior counsel for the pursuer that if the defenders are correct the implications are that there would need to be detailed pleadings of the old-style before a pursuer could be certain even of obtaining a proof in the face of claims of lack of specification, which cannot be right. And in a case such as this it would, in my view, be absurd to contemplate giving the pursuer leave to repeat by Minute of Amendment the matters already referred to in the statement of valuation.

[17 ] For these reasons I am not persuaded by the defenders' remaining arguments in respect of lack of specification in this case.

[18 ] On the other hand, there are, in my opinion, a number of factors, in particular when taken together, which would render this case unsuitable for trial by jury. ..."

[137 ] Lord Kingarth then went on to outline the various other factors which led him to conclude that that particular case was unsuitable for jury trial (such as the averments relating to funding , fertility treatment, functional improvement and retraining).

[138 ] In the result, Lord Kingarth reached the following conclusion:-

"[21] In all these circumstances, I am satisfied that the potential complexity of elements of the damages claim, particularly when considered together, is such that special cause exists for withholding this case from jury trial. I shall instead allow a proof."

[139] In my opinion, the present case does not involve the complexities which led Lord Kingarth to refuse issues.

[140] On the contrary, the submissions for the pursuers receive considerable support from the views which Lord Kingarth expressed in paragraphs [12] to [17] of his Opinion.

[141] I agree with Lord Kingarth's views.

[142] I am not persuaded by the defenders' arguments in relation to the assessment or specification of the claim in the present case.

Insurers

[143] I now turn to consider the defenders argument based on the fact that they, the defenders, are insurers.

[144] The leading case in this connection is Dale McFarlane v Barry Thain and Others.

Dale McFarlane v Barry Thain and Others

[145] In Dale McFarlane v Barry Thain and Others [2006] CSIH 3 the Opinion of the Court was delivered by Lord Johnston on 24 January 2006.

[146] In that case the pursuer claimed damages for injuries he received in a road accident when he was travelling as a pillion passenger on a motor cycle being driven by the first defender. The motor cycle came into collision with a car being driven by the second defender. The first defender was not insured and had not entered the process. However, the Motor Insurers Bureau (MIB) entered the process by a minute of sist and were represented, as minuters and respondents, in the appeal. The appeal was brought by the second defender as reclaimer against a decision of the Lord Ordinary ordering a proof before answer (in fact split between liability and quantum) and refusing a motion still being insisted in, in the reclaiming motion, by the second defender to allow issues. That represents the question that was argued in the Inner House.

[147 ] The MIB had invoked the exception in their agreement with the Government in order to deny indemnity in respect of the actings of the first defender by reason of the conduct of the pursuer having regard to the terms of clause 6(1)(e) of the agreement.

[148 ] The Opinion of the Lord Ordinary included the following terms:

"[44] In my view, the involvement of the MIB in these proceedings makes the action unsuitable for a jury trial, for several reasons.

[45 ] First, in the particular circumstances of this case, it will be impossible to avoid bringing up the question of insurance in the jury's presence. I do not accept that the authority Stewart v Duncan (1921 S.C. 482), no longer has force. The current well-established practice prohibits mention or discussion of a party's indemnity insurance in the presence of the jury. That factor alone makes the case unsuitable for jury trial.

[149 ] The Lord Ordinary then went on to specify various other factors which militated against a jury trial - such as the contentious issue of whether the exception in clause 6(1)(e)(ii) of the MIB Agreement applied and the fact that one of the parties was the MIB.

[150 ] Those factors, together with the combination of difficulties outlined by counsel, persuaded the Lord Ordinary that the case was too complex for a jury.

[151 ] The Lord Ordinary concluded inter alia that:-

"[48] In all the circumstances I am of the view that the above factors, taken individually or cumulatively, constitute special cause such that issues should not be allowed. It is unnecessary that I consider the arguments presented in respect of difficulties in quantifying loss. Obiter, I did not consider quantification to present insuperable difficulties for a jury."

[152 ] In the Inner House, counsel for the reclaimer submitted that the Lord Ordinary had misdirected herself on three separate issues.

[153 ] First of all he submitted that the Lord Ordinary had misunderstood the long-standing case of Stewart v Duncan op. cit. in the respect that she regarded it as establishing a practice that prohibited mention or discussion of a party's indemnity insurance in the presence of a jury. That, she said, was sufficient to render the case unsuitable for jury. Counsel submitted that properly understood that case was aimed at avoiding attempts by counsel to influence a jury by irrelevant or prejudicial material and was not in fact a blanket prohibition as regards mentioning or referring to insurance.

[154 ] The other two submissions are not directly relevant for present purposes.

[155 ] Unlike the present case, there was also an argument in the McFarlane case about whether the action was an enumerated cause within the Court of Session (Scotland) Act 1988.

[156 ] When delivering the Opinion of the Court, Lord Johnston said inter alia:-

"[16] We consider that the decision of the Lord Ordinary in the result was sound, although we differ somewhat in our reasoning from hers.

[17 ] In the first place we do not consider that Stewart v Duncan does establish a general prohibition against mention or discussion of a party's indemnity insurance. It may be irrelevant, but it only becomes germane to any issue if it is introduced by a party in order unduly to influence the jury. This can apply to any material intended to achieve that aim. Accordingly, in our opinion, a mere reference to insurance which does not fall within that general scope is not in itself prohibitory of allowing a jury trial or necessarily prejudicial in itself before a jury."

[157 ] Lord Johnston then went on to consider the other reasons advanced for refusing issues. It was for those other reasons the Inner House refused the reclaiming motion and adhered to the Lord Ordinary's interlocutor which had the result of ordering a proof split between liability and quantum.

[158 ] In my view, in light of paragraph [17] the Opinion of the Court in McFarlane, the pursuers in the present case are not deprived of their right to a jury trial by the fact that the defenders are insurers.

[159 ] There is, according to McFarlane, no general prohibition against mention or discussion of indemnity insurance.

[160 ] In the present case, it cannot be said that the fact of insurance has been "introduced by a party in order to influence the jury".

[161 ] On the contrary, the pursuers' claim is based upon the European Communities (Rights against Insurers) Regulations 2002 which I have set out in some detail above.