Civil jury trials
110.Sections 63 to 71 provide for civil jury trials in an all-Scotland sheriff court (for example, the proposed Sheriff Personal Injury Court - see sections 41 and 42). The intention is to introduce a procedure similar to that operating in the Court of Session and, accordingly, the provisions largely reflect the language and procedures currently set out in the Court of Session Act 1988.
Section 63 – Civil jury trials in an all-Scotland sheriff court
111.Subsection (1), read together with subsection (7), sets out the types of actions which may require a jury trial. The section only applies to those types of civil proceedings which have been specified in an order made under section 41, and only at the sheriff court or courts which have been specified as having jurisdiction throughout Scotland for those types of civil proceedings. Further, subsection (7) provides that a civil jury trial is only to take place for those types of proceedings which, if they were competent in the Court of Session, would be tried by a jury there, under section 11 of the Court of Session Act 1988.
112.Section 63(2) makes it clear that a jury trial must take place where proceedings have been remitted to probation (that is, where it has been decided to allow evidence to be led to establish the facts). This qualification makes it clear that it is unnecessary to have a jury trial where the pleadings are irrelevant or there is some other fundamental problem. However, subsection (2) also makes it clear that a jury trial will not go ahead if the parties agree otherwise or special cause is shown. The use of the phrase “special cause” is deliberately identical to that in section 9(b) of the Court of Session Act 1988 and subsection (3) explicitly provides that the sheriff will apply that test in the same way as the Court of Session currently does.
113.Subsection (4) sets out the questions which are to be put to the jury, being the “issues” put to the jury in the equivalent action in the Court of Session, in terms of section 12 of the 1988 Act. Again, as with civil jury trials in the Court of Session, a jury will consist of 12 people (subsection (5)).
Section 64 – Selection of the jury
114.Section 64 is based on section 13 of the Court of Session Act 1988, with the continued expectation that practice and procedure in the Court of Session, including with regard to the effect of any challenge to a potential juror, will be adopted in this regard in the sheriff court. Further detailed rules in relation to civil jury trials in the sheriff court, for example, on how the ballot is to be conducted, may be made in an act of sederunt under section 104.
Section 65 – Application to allow the jury to view property
115.Section 65 is based on section 14 of the Court of Session Act 1988. It provides for a party to the proceedings to apply to the sheriff to allow the jury to view any property (whether moveable or immoveable) which is relevant to the proceedings.
Section 66 – Discharge or death of juror during trial
116.Section 64 provides that the sheriff may allow a juror not to take any further part in the proceedings, and for the way in which the proceedings are to continue should a juror be permitted to take no further part or die during proceedings. It is based on section 15 of the Court of Session Act 1988, except that subsection (4) makes further provision if the number of members of the jury falls below 10.
Section 67 – Trial to proceed despite objection to opinion and direction of the sheriff
117.Section 67 is based on section 16 in the Court of Session Act 1988 and provides similarly that, if an objection is taken during the trial to the opinion or direction of the sheriff, this is not to prevent the trial from proceeding nor the jury returning the verdict and assessing damages.
Section 68 – Return of verdict
118.Section 68 is drawn from section 17 of the Court of Session Act 1988. It concerns the determination of a verdict by the jury and the status of that verdict, and includes provisions on the selection of a juror to speak for the jury and the ability of the sheriff to discharge the jury and order another jury trial should the jury be unable to agree upon a verdict after a period of three hours. Court rules will be provided under section 104 in relation to giving effect to the jury’s verdict.
Section 69 – Application for new trial
119.Subsections (1) to (4) are based on section 29(1) and (2) of the Court of Session Act 1988 except that the application for a new trial from an all-Scotland sheriff court will be to the Sheriff Appeal Court rather than the Inner House of the Court of Session. It concerns the grounds under which a party to the proceedings may apply to the Sheriff Appeal Court for a new trial and what that court may do with such an application. Subsection (4) makes it clear that the powers of the Sheriff Appeal Court are subject to the operation of section 70 which sets out conditions on those powers. Subsection (5) is new and makes clear, for the avoidance of doubt, what the consequences are of granting a new trial. Subsections (6) and (7) are based on section 29(3) of the Court of Session Act 1988 and provide where the Sheriff Appeal Court may, instead of granting a new trial, set aside the decision of the jury and enter a judgment in favour of the unsuccessful party. Subsection (8) sets out that, if the Sheriff Appeal Court consists of more than one Appeal Sheriff, the Court may set aside the verdict of a jury or enter judgment for the party unsuccessful at the trial only if that is the opinion of all the Appeal Sheriffs hearing the appeal.
Section 70 – Restrictions on granting a new trial
120.Section 70 is drawn from the provisions of section 30 of the Court of Session Act 1988. It provides for various circumstances where, in the case of an application under section 69(1), the court must grant a new trial, may grant a new trial restricted to the question of damages, or may not grant a new trial. Subsection (4) varies from section 30(2) of the Court of Session Act 1988, however, in that in the circumstances set out in section 70(3), the court must refuse to grant a new trial, whereas section 30(2) states that the court may refuse to grant a new trial. Subsection (7) explains that, where the Court is constituted by more than one Appeal Sheriff, an application for a new trial may not be granted unless the majority of those Appeal Sheriffs hearing the case agree that it should.
Section 71 – Verdict subject to opinion of the Sheriff Appeal Court
121.Section 71 is based on section 31 of the Court of Session Act 1988. It provides that a party to the case may apply to the Sheriff Appeal Court for that court to direct that a verdict be returned in whole (or in part) in that party’s favour. It further sets out what the Sheriff Appeal Court may do in respect of that application.
