Judgment was issued on 15 November 2006 in the case of Strang and others v Churchill Insurance Company Ltd [2006] CSOH 175. In this case, the defenders had sought to argue that an action for personal injuries in the Court of Session, arising from a fatal road accident, was not suitable for civil jury trial on the grounds, amongst others, that it was inappropriate to make reference to insurance arrangements in a case of this nature. The pursuers had sued the defenders directly in terms of the European Communities (Rights against Insurers) Regulations 2002, which give the victims of road accidents the option of suing the indemnifying insurer for an allegedly responsible driver rather than the driver himself.
According to the defenders’ argument, the fact that the pursuers had opted to sue the insurer directly should preclude the pursuers from the option of civil jury trial. It had been observed by the courts for many years that a jury might be unduly influenced by the knowledge that a particular defender was insured. The case of Stewart v Duncan 1921 S.C. 482 was cited in support. That authority had been considered by the Inner House in McFarlane v Thain and others 2006 S.C. 360, a decision issued at the outset of 2006, in which a case arising from a road accident where the Motor Insurers Bureau was involved was ruled to be inappropriate for civil jury trial.
In rejecting the defenders’ argument, Lord Kinclaven quoted from the McFarlane decision a passage confirming that Stewart, does not, “…establish a general prohibition against mention or discussion of a party’s indemnity insurance. It may be irrelevant, but it only becomes germane to any issue if it is introduced by a party in order to unduly influence the jury.” In Stewart the Inner House had considered an appeal against a jury’s finding in a case involving a road accident in which the fact that there had been mention during the jury trial of an insurance arrangement was founded upon by the defender as unduly prejudicial to his case. The Inner House had rejected that argument on the basis that the discussion about the insurance arrangements had been relevant to issues of credibility, and had not been irrelevant material designed to unduly influence the jury. Lord Kinclaven in Strang concluded that the fact that the pursuer sued the insurer directly meant “the fact of insurance is not irrelevant in this particular action”. It was not suggested that an action raised in terms of the European Communities (Rights against Insurers) Regulations 2002 cannot be a personal injuries action in terms of which civil jury trial is permitted by the rules of the Court of Session. By contrast, there were features relative to the McFarlane case which did mean it did not fall into the relevant category of actions for which civil jury trial was permitted, notably that it was a case where it was appropriate for a split hearing in relation to issues of liability and quantum due to the involvement of multiple defenders, only some of whom might ultimately have been held liable to the pursuer.
The defenders’ argument was a novel one arising from the comparatively recently acquired entitlement of parties to road accidents to sue a motor insurer directly. In days of near universal car ownership, was it reasonable to suggest that members of a jury would not be aware that motorists are compelled by law to obtain insurance in any event? The Lord Ordinary did not comment upon that aspect of the case, although it was raised in the pursuers’ submissions.
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Wendy Thomson
(Information posted in February 2007and may not have been updated at time of reading).