The above scene, taken some years ago in Edinburgh’s Court of Session, portrays a normality that has been sadly lost to us in the legal world over the last month or so. It’s very unlikely that our two Advocates (the English equivalent would be Barristers) will be having face to face discussions for the foreseeable future.
Yes, we’re back to the ramifications of the Coronavirus (again) and lawyers, like so many other professionals, are now having to learn to rely on technology in order to deliver services to the public.
It should not have come as a great surprise, therefore, to see that Scotland’s most senior civil court has decided to proceed with a virtual appeal hearing in respect of a high profile defamation claim.
Last year, the well known Scottish independence (not to say controversial) blogger, Stuart Campbell was unhappy with the decision of a Sheriff in his defamation claim against Kezia Dugdale, the former Scottish Labour Party Leader (Campbell v Dugdale  SC EDIN 32).
Mr Campbell sought leave to appeal to the Inner House of the Court of Session – which was granted – but this was before the virus outbreak and life as we know it changing in ways that we could not have foreseen.
The old adage about justice delayed means justice denied is extremely appropriate to the times we are living in. Due to the viral outbreak, both civil and criminal proceedings in Scotland (as in so many other countries) have practically ground to a halt.
How do we deal with this?
Necessity is the mother of invention and a virtual Inner House has been created by the Scottish Courts and Tribunals Service (SCTS). Eric McQueen, SCTS Chief Executive, is confident that the three appeal judges, court staff and lawyers for both litigants will be able to work with these arrangements. Currently, this is a temporary arrangement and jury is still out as to whether virtual court hearings will become a permanent feature of the Scottish, legal landscape. The answer to this question will surely depend on how matters progress in this particular appeal.
Even our legislators in the Scottish and Westminster Parliaments are having to grapple with the opportunities (and disadvantages) that remote working represents. Yesterday, the first virtual session of the House of Commons took place at Westminster.
Strange times indeed, but needs must when the devil drives …
A link to the BBC News website about the virtual Inner House can be found below:
Recently, one of my students asked how judges determine the level of damages that the victim in a personal injury would receive. Was there a formula or did judges make a subjective decision?
I responded that it was the former answer and that there had to be a level of consistency and transparency displayed by judges when making these types of decisions.
The Damages (Scotland) Act 2011; the latest version of the Ogden Tables; judicial precedent; awards made by civil juries; and other relevant legislation will form a framework in which judges will operate to come to their decision in the matter of compensation.
The Ogden Tables deserve a special mention: these are compiled by actuaries using statistical calculations which assist lawyers and courts throughout the UK to assess the monetary value of personal injury and fatal accident claims.
A link to resources about the background to the Ogden Tables can be found below:
A case which I mentioned in one of my most recent blogs involved medical negligence. In George Andrews v Greater Glasgow Health Board  CSOH 31, Lord Pentland very helpfully lays out in great detail the levels of compensation awarded to the pursuer and the rationale for these. In that case, the pursuer raised an action because his partner had died as a result of a failure by a junior doctor to admit her to hospital when she was chronically ill and had a history of very serious health issues.
It’s quite instructive to see how a judge arrives at deciding the level of compensation to be awarded to successful pursuers.
In George Andrews v Greater Glasgow Health Board , Lord Pentland awarded a sum of approximately £187,614 to the pursuer. This can be broken down as follows:
In the first instance, £2,922.44 was awarded for the pain and suffering (solatium) caused to the deceased partner of the pursuer due to the failure to admit her to hospital.
Lord Pentland made the following observations:
“A number of cases were cited to me; they included: Gallagher v SC Cheadle Hume Limited  CSOH 103, Bellingham v Todd 2011 SLT 1124, McGhee v RJK Building Services Limited 2013 SLT 428 and Manson and others v Henry Robb Limited 2017 SLT 1173. As well as these judicial awards, reference was made to some jury awards. [my emphasis] Having regard to the guidance provided by these cases, to the deceased’s life expectancy of 7.5 years, and to the pursuer’s evidence, I consider that an appropriate figure for damages under section 4(3)(b) of the 2011 Act is £75,000.”
Section 4(3)(b) of the Damages (Scotland) Act 2011 provides that the damages payable to the relative of a deceased person (“A”) should be:
b) such sum, if any, as the court thinks just by way of compensation for all or any of the following –
(i) distress and anxiety endured by the relative in contemplation of the suffering of A before A’s death, (ii) grief and sorrow of the relative caused by A’s death, (iii) the loss of such non-patrimonial benefit as the relative might have been expected to derive from A’s society and guidance if A had not died.”
Lord Pentland also awarded the pursuer damages for loss of support. In the case under discussion, the pursuer had lost his partner (whom he had lived with for 20 years before her death) as a result of medical negligence.
Section 4(3)(a) of the 2011 Act addresses this issue:
such sum as will compensate for any loss of support which as a result of the act or omission is sustained, or is likely to be sustained, by the relative after the date of A’s death together with any reasonable expenses incurred by the relative in connection with A’s funeral,
This figure took into consideration the following matters:
“He has no family or children to console him. The pursuer misses the deceased greatly and has had substantial difficulty in adjusting to her death. He has had to sell the house they lived in and can no longer enjoy Christmas and going on holiday. Subparagraph (iii) covers matters such as the inability to share holidays, to pursue mutual interests and to go out socially together. …
… On the basis of a life expectancy of 7.5 years for the deceased, damages for loss of support in terms of section 4(3)(a) of the 2011 Act were agreed in the sum of £65,620, exclusive of interest. I shall allow interest on £55,000 at 4 per cent per annum from 8 January 2013 until the date of decree.”
In terms of Section 9 of the Administration of Justice Act 1982 , a successful pursuer can claim for ‘services’. As Lord Pentland identified in his judgement this might a monetary calculation to include the value of the following matters:
“… the deceased [the pursuer’s partner] did all the ironing and the dusting; the parties shared the cooking. It seems reasonable to proceed on the footing that the deceased would have prepared around half of the parties’ evening meals and that she would have spent several hours a week ironing and dusting. On that basis, I shall allow 3 hours per week at £7.00 per hour for the personal services rendered by the deceased to the pursuer at the time of her death. This brings out a multiplicand of £1,092 per year.”
It is usual practice for the calculation of the value of services to include the pursuer’s past and future losses.
Interest (usually at the statutory rate of 8%) normally accrues on an award of damages, but parts of the award (as in the present case) may have different rates applied.
A breakdown of Lord Pentland’s calculations in respect of damages plus interest (over and above the element for solatium) can be found below:
A link to Lord Pentland’s Opinion can be found below (paragraphs 170 to 185 of the judgement are particularly relevant):
What if criminal law lets down victims (and by extension their families)? Over the past year, several of my Blogs have looked at situations where the Crown Office and Procurator Fiscal Service have either not succeeded in prosecuting a suspect in a criminal case or have declined to do so.
In Scotland, the ability to bring a private prosecution is heavily restricted making it almost an impossible task to obtain the necessary authorisation from the High Court of Justiciary (via a Bill of Criminal Letters).
Victims (or their families) will often then have little choice but to turn civil law for some sort of resolution – usually an action for compensation.
I often emphasise to students that criminal and civil law have very different objectives: criminal law is used by the State to punish those individuals who would threaten the safety or security of the community by their actions; civil law, in this context, is primarily concerned with compensating the victims of a wrongful act.
Admittedly, certain types of conduct can be both criminal and civil in nature e.g. assault, dangerous driving, fraud and theft. This means that an individual could face the prospect of two trials. The outcome of each trial is independent of each other.
It is also worth remembering that criminal and civil law have different standards of proof. In a criminal trial, the prosecution must prove beyond reasonable doubt that the accused is guilty of a crime; in civil law, the claimant (or pursuer) must show on the balance of probabilities that the respondent (defender) was responsible for the harm caused. The civil standard of proof is therefore a lower standard of proof.
So, it was of some interest that, in the last week, two stories were widely reported in the media which highlighted the difference between the two systems.
In the first story, it was established that John Downey, a former member of the Irish Republican Army, bore responsibility for the deaths of four members of the Household Cavalry (two British Army regiments) in July 1982. An IRA active service unit had planted a car bomb in London which had caused these fatalities. Downey was a member of that unit, but he had immunity from criminal prosecution under the terms of the Belfast (or Good Friday) Agreement 1998. The families of the victims had no alternative but to raise a civil legal action in the English High Court in order to establish that Downey was an active participant in the planning and execution of the bombing. The success of this action means that the families can now pursue Downey for damages (see Sarah Jane Young v John Anthony Downey  EWHC 3508 (QB)).
It is important to stress that this judgement establishes Downey’s civil liability for the deaths of the four serving members of the British armed forces; it does not establish criminal liability.
A link to the judgement of the English High Court can be found below:
The second story is from further afield and involves a female, Japanese journalist (Shiori Ito) who successfully sued a male TV journalist (Noriyuki Yamaguchi) who had raped her. This case broke many taboos in Japan because victims of rape tend not to publicise their ordeal. Again, the decision of Tokyo’s District Court establishes Yamaguchi’s civil liability for rape – not criminal liability.
In Scotland, of course, we have had two recent civil actions whereby victims of rape have successfully pursued their attackers for the right to receive compensation. It might not be the ideal solution, but in the absence of any action on the part of the State prosecution authorities, it may be the only recourse to justice that the victims have.
Links to media articles about the two cases can be found below:
In Chapter 1 of Introductory Scots Law, I discuss the differences between criminal and civil law. A discussion point which often arises in my lectures with students is the difference in the standard of proof in criminal and civil trials.
In a criminal trial, the onus or burden of proof is very much the prosecutor’s responsibility. In other words, the prosecutor must prove beyond reasonable doubt that the accused is guilty.
By complete contrast, in civil litigation, the onus or burden of proof is placed on the shoulders of the pursuer (or the claimant). S/he must show, on the balance of probabilities, that the basis of the claim is stronger or more credible than that of the defender (or respondent).
The criminal standard of proof is of a much higher standard than the civil burden of proof. I think this can be easily justified given the consequences of someone being convicted of a crime: the sanctions are much more serious and potentially longer lasting.
So far so good: most First Year Law students can grasp the distinction between the different standards of proof or evidence.
Difficulties tend to arise when students encounter a situation where the conduct of the behaviour at the centre of a case can have both criminal and civil consequences.
They often ask me why someone (the accused) can be acquitted of a crime, but sued successfully in a subsequent civil action?
I often use driving offences as a means of making a point. Many drivers who are charged with dangerous driving often experience immediate relief when they are acquitted of criminal charges; this sense of relief can be short lived when they are informed that the victim intends to proceed with a personal injury action (which has a very realistic chance of success).
The simple reason for the above situation is the difference in the burden of proof in each trial: the higher burden of proof in a criminal trial and a lower burden of proof in the civil claim.
It’s also important to appreciate that the criminal and civil legal systems operate independently of one another. They have different functions:
Primarily, criminal law seeks to punish offenders who behave in dangerous and irresponsible ways which would threaten the safety and security of the wider community and public.
On the other hand, civil law (concerning the breakdown of relations between private individuals) essentially seeks to provide the victim of a breach of duty with a remedy – usually, but not always, compensation or damages.
In Chapter 1 of Introductory Scots Law, I discussed the example of a successful civil claim for damages by a rape victim (DC v(First) DG and (Second) DR  CSOH 5). Crucially, the criminal case against her alleged attackers had been unsuccessful and both men were acquitted. That was not the end of the matter: the victim pursued both men at the Court of Session and won substantial damages in respect of her injuries.
Recently, there have been a number of similar cases where the failure of criminal cases to secure convictions for rape have been no barrier to victims of sexual assault from pursuing civil damages claims in the Scottish courts.
Links to two of these stories reported by the BBC can be found below:
Sean Diamond continues to deny the allegation and says he is asking for the decree to be recalled.
There different standards of proof depending on whether the legal action is a criminal prosecution or civil claim.
There is a higher standard of proof required in a criminal prosecution to secure a conviction.
The two legal systems have different objectives and operate independently of one another.
As we have seen in a number of cases, an accused who is acquitted in a criminal trial may experience a very unpleasant shock when the victim communicates an intention to pursue a civil claim for damages – which, in the longer term, may have every chance of success.
It should be emphasised, of course, that those successfully sued for conduct such as rape or sexual assault, but successfully acquitted of all criminal charges, will not have a criminal record. They will bear civil responsibility for the victim’s injuries. It’s by no means a perfect solution (given the lower conviction rates for rape), but does provide victims with some means of legal redress.