Girvan v. Inverness Farmers Dairy and Another

The House of Lords upheld the Extra Division's refusal to order a further new trial on the ground that the jury's award for solatium was not "excessive" within the meaning of section 29 of the Court of Session Act 1988. The court reaffirmed the long-standing test from Landell v. Landell that interference is only justified where the award is so out of all bounds that no reasonable jury could have made it.

The Lords accepted that the court may, if helpful, adopt a two-stage approach: (i) make its own judicial assessment of a reasonable award having regard to comparable decisions; and (ii) compare that assessment with the jury's figure, giving a broad margin of allowance for jury discretion. The so-called "working rule" (100 per cent permissible error) is a rule of thumb applicable only to solatium and must be applied from the court's judicial assessment as the starting point. Prior jury awards (including an earlier jury award in the same case) may be taken into account when deciding whether to order another trial.

Background and facts:

• The pursuer, a sheep farmer, was seriously injured in a road accident on 21 March 1989. Liability was admitted and the proceedings proceeded to jury trial solely on quantum.
• The first jury (December 1993) awarded total damages of £193,080 including solatium of £120,000 (divided into past £70,000 and future £50,000 for interest purposes). The defenders moved under section 29 Court of Session Act 1988 for a new trial on grounds including excess of damages; the Second Division held the solatium award excessive and ordered a new trial (1995 S.L.T. 735).
• A second jury (May 1995) awarded total damages of £165,530 with solatium £95,000 (past £35,000; future £60,000). The defenders again moved for a new trial; the Extra Division (1996 S.L.T. 631) by majority refused the motion, one judge dissenting. The defenders appealed to the House of Lords.

Issues before the House of Lords:

• Whether the second jury's award for solatium was excessive within the meaning of section 29 of the Court of Session Act 1988 so as to justify a further new trial.
• What is the correct test and methodology for the court to apply when reviewing a jury's award of damages for solatium, and the role of the so‑called "working rule" and of prior awards (judicial and jury) in that assessment.

Reasoning and decision:

• The Lords surveyed the statutory framework and authorities and concluded that the Landell v. Landell standard remains the proper legal test: interference only where the award is so excessive that the court can be morally convinced the jury committed a gross injustice.
• The House accepted that a two-stage process is permissible: the court may begin with a judicial assessment (using comparable awards) and then decide whether the jury's award falls outside the broad margin that reasonable juries could adopt. Where precise patrimonial items are at issue, a smaller margin is appropriate; for solatium a wider margin must be allowed.
• The working rule of 100 per cent is only a rule of thumb for solatium and must be applied from the court's judicial assessment, not as a rigid formula.
• When considering whether to order yet another jury trial, the court may take into account the figures reached by previous juries on the same evidence.
• Applying these principles to the facts (including the pursuer's severe elbow injury and significant loss of a high‑level sporting activity), the Lords concluded the second jury's award was not of the exceptional character required to be set aside and that the Extra Division had rightly refused the motion for a new trial.

Relief sought: the appellants sought to overturn the Extra Division's interlocutor and to obtain a further new trial; the House of Lords dismissed the appeal.

Appeal dismissed. The House of Lords held that the established Landell v. Landell test governs motions for a new trial on the ground of excess of damages under section 29 of the Court of Session Act 1988; a two-stage approach (judicial assessment then comparison with the jury award) is permissible but a broad margin must be given to jury awards of solatium. On the facts, and having regard to prior jury awards in the same case and the special facts (notably loss of high-level sporting activity), the second jury's solatium award was not so excessive as to justify ordering a further new trial.

First jury trial December 1993 (jury award £193,080). Defenders' motion under section 29 Court of Session Act 1988 led to Second Division interlocutor granting a new trial (Girvan v. Inverness Farmers Dairy, 1995 S.L.T. 735). Second jury trial May 1995 (jury award £165,530). Defenders' fresh motion for a new trial heard by Extra Division (1996 S.L.T. 631) which by majority refused the motion (Lord Abernethy dissenting). Appeal to the House of Lords: [1997] UKHL 47 (this judgment).