Scottish Court of Session Decisions

Lord President—From the statement which we have had from Mr Morison it is clear that the question which the jury had to consider was one depending entirely on evidence. It is not alleged that there was any erroneous direction by the Judge; but that the conclusion which the jury arrived at was against the weight of the evidence. It must be kept in view that the whole occurrence took place within the range of a few seconds, and it would therefore not be surprising that the observation of different persons or the impressions which they formed at the time might be different. Mr Morison has referred to evidence which makes that very clear. Another consideration is that there was additional evidence on this occasion which was not before the jury at the previous trial. And yet the result is that the verdict is again for the pursuer with a considerable increase in the damages. Now, Mr Morison said, I think correctly, that the question is purely one of fact, and if this be so it was eminently for the jury to determine, and the two juries have arrived at the same conclusion. It is said that the evidence was stronger for the defenders on the second occasion and yet the verdict was the same. I see no reason why a third jury might not arrive at the same conclusion upon this pure question of fact. It is very unusual to allow a third trial upon a question of evidence, although there may be cases in which it has been done. But looking to the nature of the question and the circumstances of the case, I cannot say that there is any reason for supposing that another jury might not come to the same conclusion. Therefore I think that we should not grant a rule.

Lord Adam—In these cases of damages that go to juries the jury are the judges and not the judge on the bench, and therefore whatever our opinion may be we do not pronounce a verdict in the case. In this particular case it is a question for the jury and, as I said before, not for us. No doubt the Court have power in this matter, because if they think that there is no evidence to go before the jury it is possible to withdraw the case from the jury altogether. But if there is, as there is in this case, admittedly evidence, and it comes to be a question of the weight of evidence, then the case must go back to a jury to be decided before them. In this case we in the previous stage of it were of opinion that the weight of evidence was against the verdict, and the case was again submitted to a jury. That was done, and the new jury have taken the same view as the last one. I think in such circumstances we ought not to grant a new trial. The case has been fairly considered by the juries and they have come to the same conclusion. I therefore think with your Lordship that we should not grant a rule.

Lord M'Laren—I can confirm what Mr Morison has said, that the evidence in the second trial was substantially the same as that in the first. As to the first trial, we had the judge's notes of evidence read to us at the time we granted the new trial, so that I am in a position to compare the cases. If there were any difference it was that the defenders, as I should have expected in the circumstances, were able to strengthen their case, while certainly the pursuers were not able to strengthen their case in any way. Having been of opinion that the first verdict was contrary to evidence, and not seeing any reason for changing my opinion, I must say that I think the second verdict also is contrary to the weight of the evidence. But then it does not follow that we should allow a new trial. We have the power to grant a rule on the ground that the verdict is contrary to evidence, but I think we ought not to exercise the power unless there is some reasonable prospect that the result of a new trial would be a benefit to the defenders, if not to the cause of justice. Now, in cases where a jury has gone in the face of a judge's direction and returned a verdict which is manifestly contrary to law, I should not hesitate to grant a third trial; but where the question at issue is in the region of credibility of testimony the judge has very little control of the trial, because the question at issue resolves into a matter of fact for the jury, and I should not be disposed to grant a third trial, especially in view of our experience in the present case. I may say that on the evidence as adduced before myself I should have come to a different conclusion from that of the jury, and I am not sure that I was successful in concealing my impression of the facts from the jury. The defenders had the assistance of very experienced counsel—and the pursuer certainly got no help from the judge—yet the verdict given on the first occasion was repeated with additional damages. I therefore agree with your Lordships that in the circumstances we ought not to grant a third trial, which might not improbably end in the same way.

Lord Kinnear—I concur.

The Court pronounced this interlocutor:—

“Refuse the motion for a rule to show cause why the verdict in the case should not be set aside and a new trial granted, and decern.”

The pursuer moved the Court to apply the verdict and to find her entitled to expenses.

The defenders objected to the pursuer being found entitled to all her expenses, and argued—The question of expenses was in the discretion of the Court, and as the verdict here must be taken to have been in the opinion of the Court contrary to the evidence, that discretion should be exercised to the relief of the defenders and a modification of expenses granted. Moreover, this was really a case of divided success, for they had succeeded in setting aside the first verdict. In any event the pursuer was not entitled to the expenses incurred by her at the first trial—

Page: 330↓