Civil Jury Trials
ANDREW HAJDUCKI QC
PUBLISHER: AVIZANDUM PUBLISHING LTD
The issue, for personal injury lawyers, is deceptively simple: should I buy this book?
I say deceptively, because many bookshelves will already contain the second edition. The present edition has been updated to take account of the Courts Reform (Scotland) Act 2014, which reintroduced jury trials into the sheriff court; and of cases such as Hamilton v Ferguson Transport (Spean Bridge) Ltd, on the guidance to be given to juries as regards non-pecuniary loss, and Sheridan v News Group Newspapers Ltd on verdicts contrary to the evidence. The discussion of Hamilton and its aftermath, including Lord Tyre’s approach in Bridges v Alpha Insurance and Court of Session Practice Note no 1 of 2016, is particularly helpful.
That alone probably provides a reason to justify the outlay for the new edition. However, for any lawyer who might be involved in a civil jury trial – be they pursuers’ or defenders’ agents, counsel or, dare I say it, judges (which of course, as the author points out, now includes sheriffs in the All-Scotland Sheriff Personal Injury Court – of which, more later), this book contains invaluable guidance, and it remains the “go to” work in this field.
Despite the title, everything is covered from inception of the case to appeals to the Supreme Court, through pleading, preparation for and conduct of the trial itself, and applications for a new trial. The author covers not only the law, but also discusses practical considerations. Of particular interest are the sections on tactics (as an aside, why do more defenders not insist on jury trial?), the drafting of issues/counter issues, and what opening speeches should contain. It is also striking, when reading the chapters on selection of the jury, and jury management, just how many differences there are between criminal and civil juries. We all know that a civil jury contains only 12 jurors, but how many knew that the ability to make peremptory challenges in a civil trial is alive and kicking?
The book’s interest stretches beyond the legal and practical advice which it gives. There is an interesting analysis of the history of civil jury trials in Scotland, discussion of the human rights dimension and a comparison with other jurisdictions. The book also contains much pertinent advice of general application to any personal injury action. Many sheriff court practitioners, in particular, would benefit from reading the passages on the art of pleading!
So much for the positives. Are there any negatives? Although this edition takes account of the 2014 Act, the impression, at least for this reader, is that this is done by means of, at times, superficial bolt-ons, and the book tends to proceed on the assumption that all civil trials ought to be conducted by counsel – hence the discussion of competent actions in the sheriff court, in chapter 5, focuses on whether sanction for counsel is likely to be granted, which is perhaps not the most obvious place for that topic. (Good luck with finding that in the index by the way: I couldn’t spot it under any of the obvious tags – it’s at para 5.12.) I would hope that at least some solicitors will feel emboldened to conduct appropriate cases themselves (and this book should give them the wherewithal and confidence to do just that).
There are also several errors with regard to sheriff court practice. Defences do not require pleas in law. Strictly speaking, it is not only the designated personal injury sheriffs who are eligible to hear civil jury trials – the All-Scotland jurisdiction is territorial, so any Edinburgh sheriff could competently preside. Finally, it is not the personal injuries but the personal injury court. The author uses both terms interchangeably, and the index wrongly uses the former.
The biggest negative is the editing. In a book about the civil jury trial, we shouldn’t be reading of a trail, even once. The passage at the end of para 6.05 is a perfectly good passage, but not so good that it should be appearing again as paras 6.09 and 6.10. The reader is left wondering what happened in examples (f) and (g) in para 7.04, which do not follow the structure of the previous examples. The last sentence of para 5.23 appears to have some words omitted.
However, these are minor quibbles. To end on a positive note, the book is not without its lighter side. Read of some reductions made by juries for contributory negligence and wince!
To return to the issue, the verdict is an unequivocal Yes, albeit with the rider that the fourth edition should undergo some more rigorous editing.
Sheriff Peter J Braid
In this issue
- Acting in the best interest of the company?
- Social housing: the ground rules change
- Supporting your EU staff
- Sands run out on offshore interests
- Familiar faces not welcome
- Reading for pleasure
- Opinion: Pol Clementsmith
- Book reviews
- Profile: Robert Rennie
- President's column
- Moving from Registers Direct to ScotLIS
- People on the move
- Good on paper?
- When 1 + 1 = 3
- Voice of the child
- Curators ad litem: who pays, and for what?
- Limits of a course of conduct
- Asleep on the job?
- Affidavits – essential reading
- Prisoner privacy proportionality
- Not just a matter of form for employers
- Scottish Solicitors' Discipline Tribunal
- Keep your beneficiary nominations up to date
- See-through titles: setting the scene
- In-house traineeships: time for an in-depth look
- Public policy highlights
- Paralegal pointers
- Police interview advice: a skill to learn
- Swimming, not sinking
- The lawyer and the geek
- Ask Ash