Blair v. Macfie

Factual and Procedural Background

The Plaintiff, a member of the public, brought an action seeking a declarator that the public had a right-of-way over four roads crossing the Defendant's lands. The Plaintiff asserted that three of these were public rights-of-way for foot and horse traffic, and one was a footpath. The Defendant denied the existence of these public rights-of-way, contending that some roads were private estate roads and that one had been legally closed in the early 19th century. The dispute involved whether the public had possessed the alleged rights for the prescriptive period, complicated by questions such as minority periods to be deducted.

Initially, the Lord Ordinary appointed the cause to be tried by jury, ordering issues to be lodged for trial. The Defendant appealed, arguing that the case was complex, involving multiple roads and delicate legal questions, and that public discussion had prejudiced potential jurors, making a fair jury trial impossible. The Court was asked to reconsider the mode of trial.

Legal Issues Presented

1. Whether the action involving claims of public rights-of-way over multiple roads with complex legal and factual questions should be tried by jury or by proof before the Lord Ordinary.
2. Whether the extensive public discussion and publicity surrounding the case had so prejudiced potential jurors that a fair trial by jury was impossible.
3. Whether the Plaintiff must prove continuous use of the roads not only through the Defendant’s lands but also through adjoining lands owned by parties not before the court.

Arguments of the Parties

Defendant's Arguments

• The case was very complex, involving four separate roads and multiple delicate legal questions including minority periods, title deeds, and use of lands not owned by the Defendant.
• It would be impossible to obtain an unprejudiced jury due to extensive public discussion and media coverage, which had inflamed public feeling.
• The mode of trial was within the discretion of the Court, and given the circumstances, the case should be tried without a jury.

Respondent's Arguments

• As a matter of practice, cases of this nature typically go to a jury because the main issue is the credibility of witnesses.
• The discretion to decide the mode of trial lies with the Lord Ordinary, and the Court should be slow to interfere once that discretion is exercised.
• To deviate from the usual practice of jury trial would require either the parties' consent or exceptional circumstances, which had not been demonstrated.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court recognized the discretion of the Lord Ordinary in determining the mode of trial and expressed sympathy with the initial exercise of that discretion in appointing a jury trial. However, the Court found the case to be of significant delicacy and complexity, involving four different roads requiring separate issues and complicated by the necessity to consider use of adjoining lands owned by parties not before the Court.

Further, the Court was persuaded by the argument that public discussion and media coverage had created substantial prejudice among the local population, from which jurors would be drawn, thereby risking an unfair trial by jury. The Plaintiff’s role in publicizing the matter was noted as exacerbating this prejudice, diminishing any claim to favorable treatment.

While one Lord was less persuaded by the complexity argument alone, all agreed that the public prejudice was a compelling reason to override the usual preference for jury trial. The Court thus concluded that the case should be tried by proof before the Lord Ordinary without a jury to ensure fairness and impartiality.

Holding and Implications

The Court recalled the Lord Ordinary's interlocutor appointing a jury trial and remitted the case to be tried without a jury, reserving all questions of expenses.

The direct effect is that the trial will proceed before the Lord Ordinary without a jury to address the complex legal and factual issues fairly in light of the public prejudice. No new precedent was established; the decision rested on the Court’s discretion and the particular circumstances of this case.