Abstract: D, a pillion passenger on a motorbike, sought damages for injuries sustained in a road traffic accident from the driver of the bike (the first defender), and the second defender (C), the driver of the car with which the motorbike collided. The first defender was uninsured and the Motor Insurers' Bureau sisted themselves as party minuters, seeking a ruling on the applicability of the exception to their liability in a case where the injured person "knew or ought to have known" that the vehicle in which he was allowing himself to be carried was uninsured, contained in cl.6(1)(e) of the Motor Insurers' Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1998. The minuters alleged fault on C's part and contributory negligence on D's part. D and the minuters agreed that special cause existed such that the case should not go to jury trial, with which C disagreed. The minuters further moved the court to order a divided proof in terms of the Act of Sederunt (Rules of the Court of Session 1994) 1994 Sch.2 para.36.1 ordaining that all questions except quantum be resolved first. The Lord Ordinary ordered a proof before answer in fact split between liability and quantum and refused a motion by C to allow issues. C reclaimed, submitting that the Lord Ordinary had (1) misunderstood the longstanding case of Stewart v Duncan 1921 S.C. 482 IH (2 Div), in the respect that she regarded it as establishing a practice that prohibited mention or discussion of a party's indemnity insurance in the presence of a jury when, properly understood, the case was aimed at avoiding attempts by counsel to influence a jury by irrelevant or prejudicial material and was not a blanket prohibition as regards mentioning or referring to insurance; (2) misdirected herself in considering whether there was any difficulty about the phrase "knew or ought to have known" which she considered was, in itself, sufficient to render the case unsuitable for jury; (3) erroneously listed a number of factors which, if not separately, at least cumulatively, caused complications on the evidence that was likely to be led such as would cause the jury to become confused or at least surrounded by difficulties.

Held, refusing the reclaiming motion, that (1) Stewart did not establish a general prohibition against mention or discussion of a party's indemnity insurance: a mere reference to insurance which did not fall within the general scope of having been introduced in order to influence the jury was not in itself prohibitory of allowing a jury trial, nor was it necessarily prejudicial in itself, Stewart considered. (2) There was difficulty over the construction of the phrase "ought to have known" in relation to the 1998 agreement in respect of how a jury would be charged, which was sufficient to render the case unsuitable for jury trial, but the various complicating factors founded upon by the Lord Ordinary as suggesting a further reason for avoiding a jury trial, were not necessarily so difficult as to preclude such in themselves. (3) The inevitable non-involvement of one of either C or the minuters in the question of quantification was a valid and sound one which made it desirable, if not necessary, that the hearing should be split between quantum and liability.

Judge: Lord Gill L.J.C.; Lord Macfadyen; Lord Johnston

Counsel: For the pursuer: Clancy QC and Gardner. For the first defender: No appearance or representation. For the second defender: Hanretty QC. For the respondents: RW Dunlop

Solicitor: For the pursuer: Drummond Miller WS. For the second defender: HMB Sayers. For the respondents: Simpson & Marwick