Tuesday, January 08, 2008

Juries should be allowed to set compensation levels in Scottish courts

The public and justice at large could benefit if citizens were allowed to set compensation levels in cases across the board, particularly when it comes to the far too complicated question of negligence claims, which are designed with big business in mind ... not the individual ...

The Scotsman reports :

Let citizens set fair levels of compensation


I RECENTLY had the pleasant experience of helping to arrange a conference of European personal injury lawyers (the PEOPIL organisation) here in Edinburgh.

The conference was all about road traffic accident cases and, in particular, civil compensation in road traffic cases in the different European Union (EU) states.

The delegates were very seduced by Edinburgh as a city and Scotland as a country. They were also interested in the marvellous legal surroundings in which our conference took place: the beautiful Signet Library, cheek-by-jowl with the Court of Session building.

What was of particular interest to these members of PEOPIL was that a civil jury trial was taking place next door in the Court of Session. Not only were the lawyers from the various European jurisdictions surprised that a civil jury trial could take place in an accident-at-work case (as in this particular trial) but that it could also have taken place for a pursuer involved in a straightforward road traffic accident.

The right to civil jury trial in reparation actions that exists in Scotland was also of interest and some bemusement to experienced English lawyers who were present (given that they can only obtain a civil damages jury in cases involving claims against the police). Some of the PEOPIL delegates took the opportunity to observe parts of the jury trial that was going on next door.

The foreign visitors were very struck by the ceremonial aspect of the Scottish court, the wigs and gowns of counsel and the presence of the jury in a civil damages case. In the Court of Session, only two such jury trials are allocated each week because of administrative limitations, although the great majority of such cases do settle.

One of the speakers at the conference was Andrew Hajducki QC, of the Scottish Bar, who has written extensively on the subject of civil juries in our system. Jury trials do put pressure on insurers to settle cases and, equally, place pressure on the pursuer's lawyers to be realistic about what a jury might award or not. A mature lawyer from Porto remarked to me on the sheer dignity but also the peer-group efficacy of the jury proceedings in terms of "instant" justice.

There has been a tendency noted over the years for juries to approach damages actions in a slightly different way from the way in which a judge sitting on his or her own would decide the case. For instance, a jury might make a more generous award for pain and suffering than a judge might make, but sometimes has been known to make a less generous award for future loss of earnings. There is a school of thought that a case with a large and complicated future earnings potential is better heard by a judge.

On the other hand, it is commonly believed that a jury will be more generous, particularly to a sympathetic-seeming pursuer, and that it is a good strategy to bring such a case of that pursuer's serious injuries before a jury for an award .

Juries in civil cases are, of course, quite common in the North American legal jurisdictions but are unknown in England and Wales (other than the police type of case referred to above) and, as I say, are quite common in Scotland, as an exception to both the European and common law systems.

There have been mutterings over the years to abolish civil jury trials in Scotland but I think that these moves should be opposed. Why abolish the very jewel in the crown of our distinct civil justice system?

Indeed, rumours abound that personal injury cases may be removed from the Court of Session and its judges and juries altogether and sent to the Sheriff Courts. We would thus have a system where murderers and criminals have their trials take place before judges and juries in the highest courts in the land but seriously injured victims of personal injury would have no equivalent right to process in the higher courts.

Jury trials in civil-damages actions in Scotland provide a valuable lay input into damages actions and afford to ordinary citizens – balloted from the electoral roll, as in criminal cases – a chance to decide what their peers should be awarded in personal injury compensation cases.

At this time, when the insurance industry has been extremely clever in floating (in my opinion) a canard that there is a "compensation culture" in the UK, civil juries might very well provide an acceptable remedy whereby levels of compensation were decided regularly by juries rather than by judges. It is certainly an idea worth considering.

Perhaps juries could be more widely used to decide civil compensation actions in the UK jurisdictions other than simply in Scotland?

As I watched the high-value jury trial of a badly injured woman pursuer unfold before the admiring gaze of a public that included the PEOPIL European delegates, I felt proud of our Scottish legal system, of its history, traditions and virtues, such as the right to civil jury trial under the 1988 Court Of Session Act. It occurred to me too that it actually might be desirable to extend civil jury trial to Sheriff Courts in addition to the Court Of Session. Then we really would find out from our citizens what levels of compensation are fair and reasonable for men and women in the Scottish street.

• Angus Logan is head of litigation at Ritchie Neill.

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