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Decision on Procedure For Challenging Direction To Jury

A road traffic accident victim who sought to challenge a judge’s charge to a jury after the jurors had retired to consider their verdict in her damages claim against the driver who knocked her down has had her note of exception dismissed because it came “too late”.

A judge in the Court of Session refused a request to record the exception and to give further directions to the jury as court rules state that the intimation must be made “immediately” after the directions are concluded, and he rejected the argument that there was “scope for latitude” in the interpretation of the word “immediately”.

Lord Tyre heard that the pursuer Caroline Bridges raised an action against Alpha Insurance A/S after being injured when she was struck by a car driven by the defenders’ insured as she crossed Leith Walk in Edinburgh to flag down a taxi at the end of a night out in November 2014.

At the close of a four-day trial in May 2016 the judge invited counsel for the parties to make submissions on the appropriate level of damages for solatium, in accordance with the procedure described by Lord President Hamilton in the 2012 case of Hamilton v Ferguson Transport (Spean Bridge) Ltd.

Counsel for the pursuer submitted that he should provide the jury with the widest possible range, with an upper end figure of around £120,000, while counsel for the defender suggested a range of £15,000 to £20,000.

In the course of his charge to the jury Lord Tyre mentioned a range of £25,000 to £40,000, but stressed that the figures were “only guidance” and that it was open to the jury to choose an award outside that range.

The judge then invited the jury to retire and consider their verdict, but neither party at that stage sought to take exception to the charge.

However, after the jury had been deliberating for over an hour counsel for the pursuer intimated that he wished to take exception to the charge, arguing that the range suggested to the jury was “too low” and amounted to a “misdirection”, adding that it could be cured by a “supplementary direction”.

Reference was also made to Lord President Hamilton’s observation in Hamilton that “if a party conceived that the guidance given by the trial judge on damages was unsound in law, it might except to his charge”, with the note of exception being available for consideration in any motion for a new trial.

But the judge refused to record and certify a note of exception or to give any further directions to the jury for two reasons.

In a written note, Lord Tyre said: “In the first place, I considered that the intimation of a desire to take exception came too late. Rule of Court 37.7(1) explicitly requires intimation to be made immediately on the conclusion of the charge. Similarly, Rule 37.7(3) envisages that any further directions be given before the jury considers its verdict.

“I rejected the proposition advanced by counsel for the pursuer that there was ‘scope for latitude’ in interpretation of the word ‘immediately’ in post-Hamilton practice. The rule is quite clear.”

In any event, there were “sound practical reasons” for requiring intimation to be made at the conclusion of the charge and before the jury have begun their deliberations.

“Interruption of the jury in the course of their discussions could result in their attaching undue weight to the supplementary direction at a late stage in their assessment of the evidence,” he explained.

Lord Tyre added: “In the second place, I was not persuaded that the pursuer’s proposed exception related to a direction on a point of law, as required by Rule 37.7. As a generality, non-binding guidance to the jury on quantification of damages is not a direction in law.

“Clearly it was envisaged by Lord President Hamilton that circumstances could arise where guidance given by a trial judge was unsound in law: for example, the judge might convey to the jury an impression that they were bound to make an award within the suggested spectrum.

“Hamilton requires the trial judge expressly to inform the jury that the spectrum suggested is for their assistance only and is not binding on them; that requirement was met in my charge. I accordingly took the view that no issue of law arose in the circumstances of this case, and that no relevant basis had been advanced for the recording and certification of a note of exception.”

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