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Kirsty May Hamilton v Ferguson Transport (Spean Bridge) Ltd and Gilbert Dennis Thomson v Dennis Thomson Builders Ltd [2012] CSIH 52 - 8th June 2012


This is a significant judgment marking a change in the conduct of civil jury trials in Scotland.
An enlarged bench was convened to hear conjoined motions for a new trial on the grounds, inter alia, that a) damages awarded by the juries were excessive (section 29(1)(d), Court of Session Act 1988) and; b) lack of guidance on damages given to the juries was an insufficient procedural safeguard ('other grounds essential to the justice of the cause', section 29(1), 1988 Act) and therefore inconsistent with the rights to i) the peaceful enjoyment of possessions (article 1, protocol 1 of the European Convention of Human Rights) and ii) a fair trial (article 6 of the Convention).

The court granted both motions for a new trial. The Lord President giving the leading judgment held, inter alia;

a) The propositions set out by Lord Woolman in Bellingham v Todd [2011] CSOH 74 should be read subject to the objective of seeking to narrow the disparity between judicial and jury awards and to eliminate, so far as practical, that lack of consistency. This may be achieved by three measures;
  • Firstly, by judges, sitting alone or in the Inner House, having significantly more regard to available jury awards (particularly where they demonstrate a pattern);
  • Secondly, by juries being given fuller guidance by the presiding judge as to the level of damages which, consistent with other cases, might reasonably be awarded. Further procedural arrangements intended to reduce the risk of arbitrary and excessive awards included, at the conclusion of evidence, that parties, in the absence of the jury, briefly address the trial judge on their suggestions as to the level of damages they think appropriate. The judge in addressing the jury should suggest to them, in light of those submissions and having regard to his own experience and judgment, a spectrum, figure or series of figures, not binding on them but within which their award might lie. Counsel could suggest figures to the jury but could not cite authority to them. The issue should no longer include the total sum claimed under 'damages claimed'. The actual sum for which decree could ultimately be granted would be limited by the sum concluded for in the summons. If a party conceived that the guidance given on damages was unsound in law it might except to his charge, the note of exceptions could then be considered in due course in any motion for a new trial;
  • Thirdly, by appellate courts continuing to intervene, where necessary, on comparative justice grounds as envisaged under statute.

Although the above changes were devised to address the particular problem of section 1(4) claims, there was no reason why they should not be applied, with any necessary modifications, to other claims for damages falling within section 11 of the 1988 Act or, if civil jury trial is made available in the suggested new specialist personal injury court, to appropriate claims for damages made there;

b) It was unnecessary to hold that either of the trials presently under review involved an actual breach of the respective insurer's rights under Article 6(1) as domestic legislation already provided a safeguard. The test for 'any other cause essential to the justice of the case' contained in section 29(1) of the 1988 Act includes anything which occurs in the conduct of the case before the jury which is inconsistent with the conditions of fair trial, and displaces any reasonable confidence in the result arrived at (Reekie v McKinven 1921 SC 733). The absence of judicial guidance on damages met that test;

c) The article 1, protocol 1 issue (peaceful enjoyment of possessions) was not on point and not engaged. No direct infringement arose in the present cases, which were essentially concerned with the private rights and obligations of the parties.

Secondary to the main issues, the court a) slightly criticised Girvan for ambiguity, which lead to, inter alia, i) Lord Doherty in Bellingham finding support for the proposition that primacy should not be given to jury over judicial awards and; ii) the conclusion that there was insufficient documented jury awards which could be used as a basis for comparison was no longer the case. Although it could not be said that there is yet an abundance of documented jury awards, there are more in range, number and significance than were available in Girvan; b) noted that Bellingham and Wolff markedly undervalued relative section 1(4) claims.