Scotland has, for a thousand years and more, retained its own distinctive and independent legal system and, although now one of the smallest jurisdictions in Europe, the Scottish legal system continues to thrive and adapt to meet the needs of the people in Scotland in the 21st Century. Its law and practice derives from principles of Roman Law and common law, the custom and practice of Scotland, and borrowings from over the Border and the concept of the jury, both civil and criminal, is definitely an English import.

The Court of Session, which sits in an historic and picturesque site in the centre of Edinburgh, is part of the supreme court of Scotland and amongst its many functions hears annually a large number of civil actions at first instance in the “Outer House.”  The vast majority of such actions take place before a single judge sitting on his or her own and that judge will determine the matters at stake by issuing a judgement but this is not the only method of hearing civil causes and in certain cases the parties can opt for their cause to be heard by a jury.

The right to a jury

In Scotland trial by jury in civil causes is now only available in the Court of Session and is limited to actions which fall within certain defined categories. These categories are actions of damages for personal injuries including those resulting in death, actions of defamation, actions arising out of delinquency and quasi-delinquency (i.e. delict or negligence) or actions of reduction on specified grounds. Section 11 of the 1988 Act provides that there is a statutory right to a jury trial in all of the above actions and a decision as to whether or not to exercise this right has to be taken at the time that the action is raised or within a short period of time thereafter, whether or not the action is one to which the new Chapter 43 procedure for personal injury actions applies.

Before the trial

Unless the parties agree to a proof or proof before answer, the right to a jury trial can only be attacked if one of the parties (usually, but not necessarily the defender) can persuade the court at a motion roll or Procedure Roll hearing that there is special cause for a proof or proof before answer based on the individual circumstances of that case and that accordingly trial by jury would not be appropriate. Once the Court has determined that the case will be tried by a jury Issues have to be lodged and these are formal documents in which the pursuer puts the question of liability to the jury as well as a blank schedule for the calculation of his damages. If appropriate the defender can put a question or questions to the jury in the similar form of a counter-issue and these questions can relate to liability, whether sole or apportioned between the pursuer and defender or any third party or defences such as volenti in a personal injury action or veritas in a defamation action. Once the Issues have been approved (and, if necessary, adjusted) by the court a diet of trial is fixed, a jury precept issued and a panel of 36 potential jurors resident in Edinburgh and the Lothians, are summoned to hear the action.

The Trial

At the trial diet a jury of twelve members (as opposed to the 15 members of a Scottish criminal jury) are duly balloted and empanelled and proceedings then commence with an opening speech from counsel for the pursuer in the English fashion followed by the leading of his evidence. At the close of the pursuer’s case the defender’s counsel has the opportunity to make an opening speech and to lead his evidence in the same manner. After this the parties make their closing speeches, in which they summarise their respective cases and invite the jury to find for their client. A motion can be made to have the case (or the defence contained in the counter-issue) taken away from the jury in a procedure analogous to the ‘no case to answer’ at a criminal trial. Following the closing speeches the presiding judge then charges the jury and directs them in law but neither he, nor counsel, is permitted to give the jury any detailed guidance on what sums they may award by way of solatium or other non-patrimonial loss. After the judge’s charge the jury retires to consider the questions posed in the issues and counter-issues and after their deliberations they return to deliver their verdict in open court. The verdict can be unanimous or by a bare majority, and will include where appropriate a quantification of the damages to be awarded, any deduction to be made in respect of contributory negligence and any apportionment of blame between two or more defenders. The verdict then has to be formally given effect to so that diligence can be done upon it and this is done at a subsequent diet by the presiding judge pronouncing an appropriate decree which will include such other matters such as expenses, the certification of witnesses and the application of interest to the sums awarded by the jury. 

Challenging the verdict

Any party dissatisfied with any interlocutor of the Court, such as the allowance of Issues or the form in which they are approved, amendments to the pleadings and the application of the verdict, can appeal such interlocutors to the Inner House in the usual manner. However any attack on the procedural propriety of the trial or ruling by the presiding judge or any challenge to the decision of the jury on the basis of the verdict being contrary to the evidence or any other specified ground is made by the lodging of a motion for a new trial. If this motion is granted by the Inner House after a hearing on the Summar Roll a new trial is ordered at which all matters in contention are again aired before a new jury whose verdict can then be challenged in the same manner theoretically ad infinitum.. Where the challenge to the verdict is on the basis of an excess or inadequacy of damages however, the new trial is restricted to quantum of damages only but there is no power to allow the Inner House to substitute their own quantification for that of a jury. A further right of appeal against a decision to grant or refuse a new trial lies from the Inner House to the House of Lords.