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For full opinions see the Scottish Courts website
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2006
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| ANDERSON v CHRISTIAN SALVESEN PLC |
| [2006]
CSOH 101 |
| Procedure
Roll debate – applicability of Chapter 43 cases where facts need to be
established to determine legal relevance. |
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ANDERSON v ROBERT
KELMAN (T/A AILSA WOOD PRODUCTS) |
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[2006] CSOH 135
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Proof
or Jury Trial – where pursuer pleads that the system of work was inherently
dangerous and that no safety equipment was provided or the wearing of it
insisted upon, a jury could draw the necessary inference of reasonable
forseeability – in relation to future wage loss, where it was pled that the
pursuer would, but for the accident, have joined the army and obtained
additional work skills, held that issues could be allowed since a judge or jury
would take a “broad axe view” of such loss.
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ANNANDALE v SANTE FE INTERNATIONAL SERVICES INC
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[2006] CSOH 52
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| Proof
or Jury Trial – medical complexity not necessarily reason for refusing issues –
fact that a large range of questions may create uncertainty and leave several
issues on causation not enough to refuse trial cf. Forrest v Gourlay nor are pre-existing conditions. |
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BAIRD v COWIE
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[2006]
CSOH 168
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Proof
or Jury Trial – special cause – doubtful relevancy of claims that pursuer would
“benefit” from certain treatment, would have elected to have private rather
than state-funded treatment or relocate her home so as to be nearer treatment
centre rejected as in all cases these were matters of fact to be proved by
evidence and not matters of relevancy – doubts expressed as to whether defender
can plead special cause for lack of specification where he has failed to use
Rule 43.6 (6) to seek an order for further specification – the pursuer may seek
a single award of damages to include all elements of claim although the court
could then not award interest – there may be no need to apportion services
claims as between relatives - where an objection made to evidence relating to a
head of claim in jury trial made on basis of lack of fair notice “the court
will, almost inevitably, have to look outside the averments in the statement of
claim to the statement of valuation.”
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BRACKENCROFT LTD v SILVES
MARINE LTD
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[2006]
CSIH 2
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Expenses
– where a Minute of Tender is unqualified in its offer of expenses, then the
court may award such expenses as it thinks appropriate.
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BROWN v H.M. ADVOCATE |
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[2006]
HCJAC 09 |
| Criminal
jury – 15 empanelled out of pool of 22 “lacked the appearance of fairness. The
ballot was plainly unsatisfactory and … in our opinion there was clearly a
miscarriage of justice.” – supplementary argument about imbalance between
numbers of male and female jurors rejected. |
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EASDON v A CLARKE & CO (SMETHWICK LTD) |
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[2006]
CSOH 12 |
Proof
or jury trial - Chapter 43 procedure Statements of Valuation may be taken into
account in determining whether or not fair notice of a claim has been given.
Special
cause found where pursuer paraplegic and combination of factors namely dispute
as to whether care costs would be met privately or by public funds, novel claim
for sperm harvesting and injection fertility treatment, additional adaptation
costs of house not necessarily reflected in increased value of property, where
pursuer might be capable of earning money and therefore difficulties in
calculating pension loss; these amounted to a potential complexity of elements which
would justify withholding case from jury.
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FALLONE v LANARKSHIRE HOSPITALS ACUTE
NHS TRUST |
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[2006]
CSOH 51 |
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Proof
or Jury Trial – where alleged failure to make an earlier diagnosis of cancerous
condition, the timescale of that earlier diagnosis and the reason why
chemotherapy would not then have been necessary were not averred and the fact
that pursuer had lost faith in the medical profession not explained – special
cause found – test in O’Malley
relating to whether jury could be adequately directed followed. |
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GILLIES V LYNCH |
|
Lady
Clark of Calton, 21 March 2006 (unreported) |
|
Trial
procedure – male juror discharged after stating that he suffered from deafness
and was not following the evidence – case continued with remaining jury of 10
women and 1 man. |
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For jury award see “Recent Jury
Awards” page. |
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H.M. ADVOCATE v ADAM |
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[2006]
HCJAC 41 |
| Criminal
trial – effect of juror having visited the locus of the crime and whether or
not this constituted a miscarriage of justice. |
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LOGIE v FIFE COUNCIL |
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[2006]
CSOH 127 |
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Proof
or jury trial – specification of loss of employability claim where pursuer aged
14 and had lost chance of possible career as a professional footballer – jury
in same position as judge to assess same and issues allowed – statement of
value of claim can be referred to and it may be unreasonable not to do so to
see if fair notice given – form of statement contained in Rule 43.9 may have lacunae so far as services claims are
concerned. |
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MCCORMICK v SCOTTISH DAILY RECORD
& SUNDAY MAIL LTD |
|
Lord
Menzies & Jury, 18 January 2006 (unreported) |
|
Trial
procedure – defamation action – motion to withdraw counter-issue of fair
comment from jury on basis that there was an insufficiency of evidence showing
that the representations complained of were comment as opposed to
representations of fact and that it was plain on the evidence that, if the
representations were comment at all, they were bases on mis-stated facts. The
defenders contended that whether or not the article could be viewed as comment
at all was a matter of law and thus could not be reopened at this stage, that
it was a matter for the jury as to whether or not the words were comment, that
no evidence was admissible as to whether the words complained of were comment
and that whether or not the underlying facts were substantially true was a jury
question. The judge refused the motion on the basis that this was not a
question of sufficiency but an argument as to relevancy which was no longer
open to the pursuer and that in nay event the central questions, i.e. whether
or not the words complained of were comment and, if so, whether they were based
on the facts, were classically matters for the jury to decide. |
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For jury award see “Recent Jury
Awards” page. |
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MCFARLANE v THAIN |
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[2006]
CSIH 3 |
Proof
or jury trial – appeal – enumerated action - where Motor Insurers’ Bureau
involved and vital question between pursuer and MIB was whether pursuer knew or
ought to have known that driver was uninsured, the court held that to establish
liability on the part of defenders and minuters, the cause was a “hybrid”
rather than enumerated cause. Motion that court should exercise discretion and
allow jury trial in action that was not enumerated cause refused.
Special cause – example of special cause being
argued by defender – uncertainty of precise meaning of phrase used in specific
statutory context may constitute special cause - mention of insurers not bar to
issues unless done so in deliberate attempt to influence jury |
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MORRIS v FIFE COUNCIL |
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[2006]
CSOH 117 |
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Pleadings
– amendment – where pursuer had, at a procedure roll hearing (2003 SLT 926,
2004 SLT 1139) deleted averments which might have prevented him from obtaining
issues, there was no bar to him attempting to reintroduce them for a subsequent
proof.
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For outcome of proof see JM v Fife Council,
[2007] CSOH 18. |
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QUIGLEY v HART BUILDERS (EDINBURGH) LTD |
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[2006]
CSOH 118 |
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Procedure
– list of witnesses – where a party seeks to lead a witness not on the list of
witnesses intimated to the other side, he requires the leave of the court to do
so. If a party is to give evidence himself then it is preferable for him to be
on a list of witnesses. |
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SHERIDAN v NEWS INTERNATIONAL |
| Lord
Turnbull and Jury, 4 August 2006 |
|
For award see “Recent Jury Awards”
page. |
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STRANG v CHURCHILL INSURANCE CO LTD |
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[2006]
CSOH 175 |
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Proof
or jury trial – special cause – difficulty of assessment of damages because of
lack of specification – reference to statement of valuation allowed, Easdon followed – section 8 and 9
services are largely jury matters and specific figures may not be necessary if
judge can direct a jury to give a general overall figure for same – reliance on
EC (Rights Against Insurers) Regulations 2002 and mention of insurers in
instance not special cause. |
| TONER v McLEOD |
|
[2006]
CSOH 22
|
| Proof
or jury trial – conflict of medical opinion as to causation not enough per se to constitute special cause –
doubtful relevancy where alleged professional negligence of dentist but no
averments as to what ordinary dentist acting with reasonable skill and care
would have done or failed to do in circumstances. |
| TONER v McLEOD |
| Lady Paton, [2006] CSOH 96 |
| Proof or jury
trial hearing – following upon Toner v
McLeod, [2006] CSOH 22, in which issues were refused in a medical
negligence case where there were no relevant averments relating to what an
ordinary dentist acting with reasonable care and skill would have done or
failed to have done, the pursuer amended and issues were then allowed. In
addition the fact that there was a counter-issue relating to contributory
negligence, though unusual in an action of professional negligence, did not
render the action unsuitable for jury trial. |
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[Supplementary Opinion] After amendment to bring in averments referred to
above, issues allowed, despite the unusual aspect of a contributory negligence
plea in a professional negligence case.
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VETCO GRAY UK LTD v
SLESSOR
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[2006]
CSIH 11
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Proof
or jury trial – third party - court divided inquiry into two stages to allow a
separate proof between defender and third party on validity of indemnity clause
and then thereafter a proof or jury trial on liability as between pursuer and
defender or third party depending on outcome of first proof.
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2007
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GILLIES v LYNCH
|
| First
Division, 13 February 2007 |
In
a motion for a new trial, the defenders argued that the case should have been
withdrawn from the jury on the basis that an abnormal or pathological grief
reaction was not a relevant head of claim. Held that the matter could not be
raised at the trial or subsequently, the case having been taken to debate on
two occasions in respect of the same matter and that no reclaiming motions had
been marked against the decision of the Lord Ordinary to allow such a claim to
go before the jury and that accordingly the trial judge was right to have
refused to uphold the defenders’ motion at the trial.
[verbal judgement]
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MOORE v
SCOTTISH DAILY RECORD AND SUNDAY
MAIL LTD.
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[2007]
CSOH 24
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A
case concerned with the circumstances in which a pursuer in a defamation action
who has accepted an offer to make amends may then proceed with a defamation
action.
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READY v H.M. ADVOCATE
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[2007]
HCJAC 15
|
| Where
it was alleged that three jurors had not given appropriate consideration to the
issues in the case and wished the jury’s deliberations to be brought to an
early close, “It appears to us that it
is inevitable that, from time to time, one juror may regard the general
attitude of another to jury service as unsatisfactory. However, in our opinion,
for sound reasons of public policy, investigation into such matters cannot be
entertained.” |
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