8th February 2016


In Scotland people making claims for damages arising out of personal injuries have a general right to have their cases heard by a Judge and Jury, and not just a Judge sitting alone.  This right used to only exist if a Claimant sued in the Court of Session, but some recent reforms have made it possible to apply for a Jury in the new All Scotland Sheriff Court in Edinburgh (though they are still not available in local Sheriff Courts).

The main argument in favour of having a Jury has always been that members of the public tend to be much more generous than Judges when deciding on the amount of compensation to be paid.  The courts can give them some guidance on the amount to be awarded, but nothing said by the court is binding on the Jury, which can award as much as it likes.  By contrast, Judges sitting alone look at the awards in previous similar cases and prefer to award the same amounts again, in the interests of consistency.  So in cases where the case is straightforward and compensation is going to be reasonably substantial, the advice is often given that a Claimant should go for a Jury if at all possible, and only opt for a Judge sitting alone if the case is too complex, and a Judge might be a safer pair of hands.

But there is another question that Claimants should ask themselves when deciding whether to apply for a Jury, beyond simply “Is my claim complex?”, and it is one which very few people will be able to answer honestly.  It is “am I likeable?”, or “is my claim sympathetic?”  There have been several cases down the years where Juries have simply not liked the Claimant, or have disapproved of the claim in some way, so that although the Claimant has won the case, the Jury has taken its revenge by awarding a paltry sum by way of compensation.

Such catastrophes are relatively unusual, but an example is a very sorry Court of Session saga which at last came to an end in August 2015.  The facts of the case were that the Claimant had gone round to a friend’s house for a New Year’s party in January 2011.  The family dog, Dougal, normally a very friendly beast, was sleeping on the sofa.  The Claimant sat down near him, and he growled at her.  The host said “watch him”, but the Claimant, according to some witnesses, grabbed hold of Dougal’s cheeks or whiskers and said “wheesht you – give us a kiss”.  Dougal then bit the Claimant in the face, causing a considerable scar.

The Claimant sued.  It was a pretty simple case, and might at first glance have seemed quite sympathetic, so it was decided to opt for a Jury.  After the evidence had been heard the Advocate for the Claimant suggested to the Jury that they should award £40,000.00 as compensation for pain and suffering.  The Advocate on the other side suggested that £10,000.00 would be appropriate.  The Judge agreed with these figures, and suggested to the Jury that they might wish to award something between £10,000.00 and £40,000.00.

The Jury went away to consider their verdict.  When they came back they found that the Claimant was entitled to compensation.  Then came a nasty shock.  They awarded as compensation a basic figure of £5,000.00, and then it got worse.  They said that the Claimant was to a great extent responsible for the accident herself, and reduced the damages by a large percentage to reflect that.  The end result was that the Claimant was awarded £907.50.

This result was a disaster for the Claimant.  Not only was it not worth fighting for years in court for such a small amount, but depending on what sort of arrangement she had for paying her Solicitors, she might have ended up with a net loss out of the whole matter.  Also, if the other side had ever offered to pay compensation of around £5,000.00 (and it is not known whether they ever did), the Claimant might well have been ordered to pay all their legal expenses because she had failed to beat that offer.

Unsurprisingly, the Claimant appealed, saying that the award was on any view inadequate.  However, the Judges of the Appeal court disagreed.  Although there was a general working rule that damages would be seen as inadequate if they were less than half of what a Judge would have awarded, and although the compensation was perhaps less than half of that sum, this was only a very general rule of thumb, and the Judges did not think that any substantial injustice had been done.  Accordingly the Claimant, completely out of luck with the Scottish legal establishment, had her appeal rejected.

This whole case stands as a lesson on when to seek a Jury Trial, and when not to.  Obviously, we are never going to know exactly what passed through the Jury’s minds when they considered their verdict.  However, the suspicion is that there are three factors which lost the sympathy of the Jury..  Firstly, the Claimant may have been drinking at the time of the accident.  Secondly, she was guilty of rough behaviour towards an animal – never going to go down well with a British Jury.  Thirdly, having sustained an injury, she decided to sue the host who had invited her round to a New Year’s party.  This is hardly the behaviour of an ideal guest.  A Judge would not have allowed these considerations to weigh heavily with him or her, but Juries can feel very different about such matters – in this case, with appalling consequences.

Richard Godden
Partner – Personal Injury/Dispute Resolution



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