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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark v Shirra [2012] ScotCS CSOH_30 (14 February 2012) URL: http://www.bailii.org/scot/cases/ScotCS/2012/2012CSOH30.html Cite as: [2012] ScotCS CSOH_30 |
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OUTER HOUSE, COURT OF SESSION
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PD2846/09
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NOTE BY LORD STEWART in the cause SYBIL CLARK Pursuer against DAVID SHIRRA Defender ญญญญญญญญญญญญญญญญญ_____________
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Pursuer: Smith QC; J McConnell, advocate; Gildeas Solicitors
Defender: J Thomson, advocate; Andersons Solicitors LLP
14 February 2012
Introduction
[1] Counsel have asked me to issue this Note of
a ruling made during a Civil Jury Trial in this personal injuries action today.
The matter has been dealt with immediately before speeches in the absence of
the Jury. Liability has been conceded in this case.
Ruling
[2] Senior Counsel for the Pursuer has made an
application to be permitted to put the Defender's statement of valuation of
claim before the Jury who are about to determine the damages to be awarded to
the Pursuer. Senior Counsel wishes to refer to the statement of valuation of
claim in his speech to the Jury. The application is opposed by Counsel for the
Defender. Having heard the submissions of Counsel I shall refuse the application.
[3] Statements of valuation of claim are
required to be lodged by both parties in terms of RCS 43.9. The Practice Note
No 2 of 2003 states that the valuations "are not binding upon the parties who
make them. It is, however, intended that these statements should reflect a real
assessment of the value of the claim and accordingly it will be open to either
party to found upon the making of its own statement of valuation or upon that
of the other party."
[4] The only case law cited to me is a
reference in the standard text, A M
Hajducki QC,
Civil Jury Trials 2nd edition (2006), pages 187-188, where it
is stated: "where the jury has been made aware of what sum was being sought by
the pursuer by way of solatium in either the evidence or submissions of counsel
(for instance by having had its attention drawn to the statement of valuation)
then it should be told to disregard any such sums in considering what it would
consider to be a fair figure to award under this head"; and page 188, Note 42:
"This direction was given by Lord Carloway in Sneddon v Deutag Services, 1 Nov 2004, but
the jury then proceeded to award the pursuer the same sum for solatium as had
appeared in his statement of valuation, possibly showing how difficult it is to
erase such information from the minds of the jurors once they have become aware
of it."
[5] There are four reasons why I rule that the
valuation must not be disclosed to the Jury:
[6] Senior Counsel for the Pursuer has been
unable to persuade me that any prejudice will arise to the Pursuer if the
application is refused. Senior Counsel is to be commended for having given
Counsel for the Defender and the Court notice of this application and for making
the application in advance of speeches in the absence of the Jury.
Postscript
[7] Since delivering the above ruling I have
read the article by R Milligan QC mentioned in the Note of Submissions prepared
by Junior Counsel for the Pursuer [R Milligan, "Statements of Valuation of
Claim", Rep. B. 2003, 53(Sep), 4-6, especially section 6]. The view
offered by Mr Milligan appears to coincide with the view I have expressed
above.