Factual and Procedural Background
The pursuer was indicted for giving false evidence in a civil jury trial concerning allegations of sexual relationships and visits to a swingers’ club. The indictment specified false denials relating to sexual intercourse at a hotel, sexual relationships with two women (AK and KT), and admissions made at a political party meeting. The indictment notably excluded allegations related to a third woman (Fiona McGuire) and the pursuer’s teetotal status, apparently due to investigations undermining those claims.
On 23 December 2010, the pursuer was found guilty by a majority verdict of perjury concerning certain denials made during the civil trial, including admissions about visits to a swingers’ club and a sexual relationship with KT. The jury did not find beyond reasonable doubt that the pursuer lied about the hotel incident or the relationship with AK.
The pursuer was sentenced to three years imprisonment for perjury on 26 January 2011 and lodged an appeal which was refused. Subsequently, new evidence emerged, including an affidavit from a woman named MM alleging a long-term sexual relationship with the pursuer, which had not been presented at either trial.
The defenders sought a new civil trial, relying on the criminal conviction and new evidence, while the pursuer contested these grounds, alleging illegal evidence gathering and abuse of process by the defenders. After procedural motions and hearings, the court addressed the defenders’ motion to set aside the original civil jury verdict and remit the case for further proceedings.
Legal Issues Presented
- Whether the civil jury verdict should be set aside on the ground that it was unsafe and contrary to the justice of the cause due to the pursuer’s criminal conviction for perjury.
- Whether the verdict was contrary to the evidence presented at the civil trial.
- Whether new evidence (res noviter veniens ad notitiam) including the perjury conviction, a video-tape, and affidavit of MM justifies a new trial.
- Whether the overarching test of “essential to the justice of the cause” under section 29 of the Court of Session Act 1988 is met to warrant a new trial.
- Whether the defenders’ conduct and alleged illegal evidence gathering affect the admissibility of evidence and the fairness of a new trial.
Arguments of the Parties
Defenders' Arguments
- The civil jury verdict was unsafe and should be quashed due to the pursuer’s perjury conviction, which demonstrated he had lied under oath.
- The verdict was contrary to the evidence because it depended on dishonest evidence from the pursuer, undermining the credibility of the original trial.
- The new evidence (res noviter) comprising the perjury conviction, the McNeilage video-tape, and MM’s affidavit justified a new trial as it was material to the justice of the cause.
- The pursuer’s dishonesty amounted to a fraud on the court, categorizing him as a dishonest litigant with consequences for the civil proceedings.
- The new trial should be conducted by a judge without a jury due to complex legal issues and doubtful relevancy of certain evidence.
- The defenders no longer sought the appeal court to determine the merits but requested the verdict be set aside and the case remitted for orderly further proceedings.
Pursuer's Arguments
- The pursuer denied lying at the civil trial and referred to his ongoing criminal appeal against the perjury conviction.
- The original defamatory article concerning Fiona McGuire, which initiated the litigation, was false, as shown by later statements from McGuire herself.
- The new evidence relied on by the defenders was tainted by illegal journalistic practices, including phone-hacking and document falsification, rendering it inadmissible.
- The defenders’ motion was an abuse of process aimed at continuing unfounded attacks on the pursuer’s credibility.
- The perjury conviction could not form the basis of res noviter as it was not evidence existing at the time of the civil trial.
- The McNeilage tape and MM’s affidavit did not import any new feature or complexion to the case but merely corroborated existing evidence.
- The defenders’ impeachment of their own witness (the pursuer) was improper.
- The motion for a new trial was premature given the ongoing criminal appeal and should be dismissed outright.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lockyer v Ferryman (1877) 4 R (HL) 32 |
Consequences of a party being a dishonest litigant and abuse of process |
Referenced by defenders to support the categorization of the pursuer as a dishonest litigant due to perjury conviction. |
| Maltman v Tarmac Civil Engineering Ltd 1967 SC 177 |
Overarching test of "essential to the justice of the cause" for setting aside a verdict |
Cited to emphasize the high threshold for granting a new trial and that new evidence must be crucial to the case. |
| Snodgrass v Hunter (1897) 2F 76 |
Verdict contrary to evidence and its interpretation |
Considered but court found it was obiter and did not support setting aside verdict on perjury ground alone. |
| Miller v Mac Fisheries Ltd 1922 SC 157 |
Res noviter veniens ad notitiam – new evidence must be material to justice of the cause |
Applied to assess whether the perjury conviction and new evidence justified a new trial; court found it did not. |
| Moyes v Burntisland Shipbuilding Co 1952 SC 429 |
Procedural authority for remitting cases to Lord Ordinary |
Supported procedural proposal to remit the case for further orderly proceedings if required. |
| Ferguson v Western SMT Company Ltd 1969 SLT 213 (HL) |
Role of civil jury as finders of fact and appellate restraint |
Confirmed the court’s deference to jury fact-finding and the difficulty in overturning jury verdicts. |
| Thomas v Thomas 1947 SC (HL) 45 |
Deference to jury decisions as judges of fact |
Reinforced principle that appellate courts should be slow to interfere with jury verdicts. |
| Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 |
Jury verdict and assessment of evidence |
Supported the view that jury decisions on credibility are entitled to respect. |
| McGraddie v McGraddie 2013 SLT 1212, [2013] 1 WLR 2477 |
Jury’s role in credibility and reliability assessments |
Affirmed appellate restraint in interfering with jury findings. |
| Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 12, 2014 SLT 775 |
Limits on interference with jury verdicts |
Emphasized the importance of respecting jury fact-finding. |
| Rothschild v Associated Newspapers Ltd [2013] EWCA 197 |
Effect of statutory provisions on defamation claims and sting of defamatory material |
Referenced regarding issues of sting and relevance of criminal convictions in defamation context. |
Court's Reasoning and Analysis
The court began by acknowledging the serious nature of the pursuer’s perjury conviction and the new evidence presented by the defenders. However, it emphasized the principle that a civil jury’s verdict is entitled to significant respect, particularly as the jury was well-placed to assess credibility and reliability of witnesses after a lengthy trial.
The court analyzed the grounds for a new trial under section 29 of the Court of Session Act 1988, which requires that it be “essential to the justice of the cause” to set aside a verdict. The court found that while the perjury conviction established that the pursuer lied about certain matters, the jury in the civil trial could have reached their verdict accepting that the pursuer was dishonest on some points yet still found in his favour on others, particularly rejecting the lurid allegations related to Fiona McGuire.
The court rejected the argument that the verdict was contrary to the evidence on the basis of perjury, noting that the phrase “contrary to the evidence” refers to the evidence actually before the jury, and does not permit excising parts of evidence post hoc. It found the defenders’ reliance on perjury to support this ground unpersuasive.
Regarding res noviter, the court accepted the perjury conviction as evidence of dishonesty but concluded that it did not introduce any new feature or significant new complexion to the case that was not already open to the jury. Similarly, the McNeilage video-tape and MM’s affidavit, even if genuine, would only corroborate existing evidence rather than alter the case fundamentally.
The court also considered the pursuer’s allegations of misconduct by the defenders, including illegal phone-hacking, document falsification, and witness manipulation. While acknowledging the seriousness of these claims, the court noted that it was not a fact-finding body and that these issues would require separate proceedings or investigations.
Ultimately, the court determined that the defenders had not demonstrated that a new trial was “essential to the justice of the cause.” The complexity of the case, the jury’s ability to weigh conflicting evidence, and the absence of new material that would likely change the verdict weighed against granting a new trial.
Holding and Implications
The court REFUSED the defenders’ motion for a new civil trial.
The direct effect of this decision is that the original jury verdict from 2006 stands, notwithstanding the pursuer’s criminal conviction for perjury and the new evidence presented. The court did not set any new precedent but reaffirmed the high threshold for overturning civil jury verdicts and the importance of the overarching test of “essential to the justice of the cause.”
The court also highlighted that allegations of improper conduct by the defenders’ staff remain matters for separate investigation and are not determinative of the civil trial’s outcome. The decision maintains the principle that civil appellate courts must show deference to jury fact-finding, particularly in complex and multi-faceted cases.