Farrington v Brandon

• Jurisdiction: Jamaica
• Judge: (Moody, Eccleston and Luckhoo, JJ.A.)
• Judgment Date: 30 July 1968
• Court: Court of Appeal (Jamaica)
• Date: 30 July 1968

Court of Appeal of Jamaica

(Moody, Eccleston and Luckhoo, JJ.A.)

FARRINGTON

and

BRANDON

M. Tenn for the appellant;

L.G. Barnett for the respondent.

Cases cited:

(1) Calcraft v. London Gen. Omnibus Co. Ltd., [1923] 2 K.B. 608, dictum of Lush J. considered.

(2) Evans v. Bartlam, [1937] 2 A.C. 473; [1937] 2 All E.R. 646.

(3) Ford v. BlurtonUNK(1922), 38 T.L.R. 801, dicta of Atkin and Bankes, L.JJ. considered.

(4) Hennell v. Ranobaldo, [1963] 1 W.L.R. 1391; [1963] 3 All E.R. 684.

(5) Hope v. Great W. Ry. Co., [1937] 2 K.B. 130; [1937] 1 All E.R. 625, dictum of Lord Wright, M.R. applied.

(6) Jenkins v. Bushby, [1891] 1 Ch. 484.

(7) Martin, In re, Hunt v. ChambersELR(1882), 20 Ch. D. 365, considered.

(8) Sims v. Howard (Wm.) & Son Ltd., [1964] 2 Q.B. 409; [1964] 1 All E.R. 918.

(9) Temple Bar, TheELR(1885), 11 P.D. 6.

(10) Ward v. James, [1966] 1 Q.B. 273; [1965] 1 All E.R. 563.

Legislation construed:

Judicature (Administration of Justice) Law (Laws of the Cayman Islands, 1963, cap. 74), s.138: The relevant terms of this section are set out at page 118, line 25 page 119, line 2; page 130, lines 2341.

s.139: The relevant terms of this section are set out at page 131, lines 14.

s.140: The relevant terms of this section are set out at page 131, lines 510.

Civil Procedure-juries-circumstances in which jury trial possible-under Judicature (Administration of Justice) Law (cap. 74), s.138, onus on applicant to show case suitable for jury trial-judge has unfettered discretion to decide whether to summon jury, on consideration of all surrounding circumstances, including need for fair trial

The defendant-appellant applied for an order that civil proceedings which had been commenced in the Grand Court against him by the plaintiff-respondent be tried before a judge sitting with a jury.

The plaintiff-respondents action was for damages for personal injuries occasioned by assault. The defendant-appellant counterclaimed and applied under the Judicature (Administration of Justice) Law, s.138 for trial by jury on the basis that (a) the outcome of the dispute depended almost entirely on findings of fact and the assessment of damages and did not involve any technical questions which were unsuitable for the consideration of a jury; and (b) since he himself was Caymanian and the trial judge and the plaintiff-respondent were Jamaican, justice would be better served if the issues of fact were decided by a jury.

The plaintiff-respondent, who was a barrister practising in the Cayman Islands, opposed the application on the grounds that (a) trial by jury was inappropriate since it was a simple, straightforward case, of a type not traditionally tried by a jury and it was legally impermissible so to try it; and (b) it would prejudice him to order trial by jury since he was a nonCaymanian who had appeared in court against many Caymanians, and the defendant-respondent was himself a Caymanian.

The Grand Court held that, although there was a right to trial by jury under the Judicature (Administration of Justice) Law (cap. 74), ss.138140 except in special circumstances, the fact that a trial by a Caymanian jury might well deny the plaintiff-respondent a fair trial was such a special circumstance and consequently the application would be refused.

On appeal, the appellant submitted that (a) he had a right to elect trial by jury and the judge had no discretion to refuse; and (b) even if the judge did have a discretion under s.138, he had exercised it incorrectly since he should have considered the nature of the case and not the personal position of the parties.

The respondent submitted in reply that (a) under s.138, the judge had to decide whether the appellant had discharged the onus which fell on him of showing that the matter was suitable for trial by jury and had an unfettered discretion to consider not merely the nature of the action

but also all the surrounding circumstances; and (b) consequently, it was a proper exercise of the trial judges discretion to refuse the application in order to ensure an unprejudiced trial.

Held, dismissing the appeal:

The onus was on the appellant, as the applicant, to show that the matter was one that could properly be tried by a jury, i.e. that it was a fit and suitable case for trial by jury. Under the Judicature (Administration of Justice) Law (cap. 74), s.138, the trial judge had to decide whether the appellant had discharged this onus, and in considering the matter he had an unfettered discretion to consider all the circumstances of the case-not only the nature of the action but also the surrounding personal factors, including the need to ensure a fair trial. As it had not been shown that the trial judge had considered any improper matters, and it was a proper exercise of his discretion to refuse to order trial by jury on the ground that to summon a Caymanian jury might be prejudicial to the respondent, the court would not interfere with this exercise of the discretion and the appeal would be dismissed (per Eccleston, J.A., page 129, line 3 page 130, line 6; and Luckhoo, J.A., page 133, line 23 page 136, line 9; Moody, J.A., dissenting, page 119, line 3; page 123, line 37).

MOODY, J.A.: This is an appeal from the decision of the
learned Acting Judge of the Grand Court of the Cayman Islands
refusing an application by the appellant for trial by jury of an
action for assault brought by the respondent against him and a
5	counterclaim by the appellant.
The appellant in his affidavit supporting the application stated,
inter alia, that the outcome of this action will depend almost
entirely on findings of fact and assessment of damages and will
not require any prolonged examination of documents or accounts
10	or local investigation and particularly nothing which cannot
conveniently be made with a jury, but it may involve questions
of prolonged or permanent disability but is not one which involves
any difficult medical or other technical questions. The appellant
expressed the opinion that, inasmuch as the respondent and the
15	Acting Judge of the Grand Court to preside at the trial are from
Jamaica and are both of Jamaican nationality, the ends of justice
and the appearance thereof will be better served if the issues of
fact in dispute are decided by a jury.
The respondent in his affidavit opposing the application stated
20	that he did not require a jury; this is not the sort of case fit for trial
by a jury; it is a simple, straightforward case and not one of the
usual cases traditionally tried by a jury; that it would be legally
impossible to try this case properly with a jury.
As regards the appellants allegations that the ends of justice
25	will be better served by trial with a jury, the respondent states that
the appellant is a Caymanian and most, if not all, Caymanians are
related to each other; that he, being a foreigner, would not get the
benefit of a dispassionate or impartial hearing from a Caymanian
jury as against the appellant; that he happens to be a leading
30	practitioner in the courts of the Island and enjoys a large practice
with the result that there are many Caymanians whom of necessity
he has had to act against, many of whom have suffered a decision
in the court against them and who have suffered reverses thereby
and who as jurors would deem it a pleasure to act unfavourably
35	and sit in judgment against him, regardless of the fact that such
behaviour would not be in keeping with their judicial oath nor
their conscience. Further, that the allegations made in the affidavit
by the appellants counsel are unfounded in that judges are trained
lawyers and in contradistinction to laymen, are better able by
40	reason of their training to discard from their minds things heard
or said outside the courtroom.

The learned judge, after hearing legal submissions on behalf of
both parties, refused the application.
At the hearing of this appeal, learned counsel for the appellant
submitted that by the law of the Cayman Islands where a party to
5	an action of this kind applies for trial by a jury, such party has a
right to trial by jury and the judge has no discretion to refuse.
Also, even if the judge has a discretion, he has clearly exercised it
for reasons that are wrong in law. Alternatively, the reasons set
out do not make this case special and the judge wrongly exercised
10	his discretion. He urged that the consideration the judge was
required to give had to do with the nature of the case and not
the parties. He submitted that the consideration mentioned in para.
2 of the judgment, viz: The court considers the fact that plaintiff
is a practising barrister and has appeared against many Cayma-
15	nians and the fact that as most Caymanians are mostly inter-
related no fair trial can be had by jury, were most improper
considerations for the judge to act upon; that the learned judge
failed to consider whether the action could properly be tried by a
jury.
20	Learned counsel for the respondent submitted that the propriety
of jury trial was not based on the cause of action but on the
suitability of the matter; that as a matter of history the cases
exempted from automatic determination by a jury were never
selected because of the nature of the cause of action; that the
25	concluding words of the proviso and the judge considers that the
matter is one that can properly be tried by a jury have to do with
the type of matter that came before the court; that these words left
consideration to the judge so that trial by jury was not as of right;
whether a matter could properly be heard by a jury cannot be
30	decided on the basis of the nature of the cause of action; that the
word matter as distinct from cause was appropriate to
comprehend all the relevant circumstances surrounding and
involved in the case; the final phrase

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