Jersey Unreported Judgments

Damages

[2021]JRC231

Royal Court

(Samedi)

16 September 2021

Before     :

Advocate Matthew John Thompson, Master of the Royal Court

 

Advocate C. Hall for the Plaintiff.

Advocate C. B. Austin for the Defendant.

CONTENTS

		Paras
1.	Introduction	1
2.	Background	2-4
3.	Criminal Conviction	5-19
4.	Le criminel tient le civil en etat	20-24
5.	Costs	25

judgment

the MASTER:

Introduction

1.        This judgment contains my detailed written reasons for refusing to strike out a reference to a criminal conviction in the plaintiff's order of justice and also for refusing a stay applying the maxim le criminel tient le civil en etat.

Background

2.        The proceedings brought by the plaintiff are for damages for personal injury.  The claim arises out of an allegation that the plaintiff was raped by the defendant.  The order of justice expressly refers to the conviction.

3.        Subsequent to the conviction the defendant appealed the conviction unsuccessfully to the Court of Appeal.  However, the defendant now wishes to make an application under Article 43 of the Court of Appeal (Jersey) Law 1961 which provides as follows: -

"43      Prerogative of mercy

Nothing in this Part shall affect the prerogative of mercy, but, as respects the conviction of a person on indictment by the Royal Court or the sentence passed on a person so convicted, being a conviction or sentence against which an appeal lies under this Part to the Court of Appeal, the Lieutenant-Governor may, if he or she thinks fit, at any time either -

(a)     refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)     if the Lieutenant-Governor desires assistance on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court shall consider the point so referred and furnish the Lieutenant-Governor with its opinion thereon accordingly."

4.        The defendant has retained fresh counsel to make such an application.

Criminal Conviction

5.        The defendant's arguments were based on the case of Gosselin v Capital Properties Limited [2004] JLR 74.  In that case the Royal Court considered the admissibility of the Magistrate's judgment in subsequent civil proceedings arising from the same subject matter.  The plaintiff in Gosselin was acquitted in the Magistrate's Court of having committed a grave and criminal assault against a doorman of a nightclub.  The head noted that "In his judgment, the Relief Magistrate was particularly scathing of the treatment the plaintiff had received which had led to his injuries."

6.        This led the plaintiff to have the Magistrate's judgment and previous statements of the parties used in the Magistrate's Court admitted as evidence in the subsequent civil proceedings.  The application was refused with the head note stating as follows: -

"(1) The court would not allow the plaintiff to use material from the criminal prosecution as evidence in the present proceedings. Even though the witnesses and the parties in the civil case would be identical to those who had appeared in the Magistrate's Court, this did not alter the basic rule that facts in issue normally had to be proved by evidence. The fact that the Magistrate's Court had acquitted the plaintiff was completely irrelevant as this decision was a considered opinion and not a matter of fact. Moreover, since the standard of proof in civil actions was lower than that in criminal cases, the fact that the plaintiff had been acquitted in the criminal proceedings did not mean that he would be found blameless in a civil action. However, if a witness were to depart materially from anything said on oath in the Magistrate's Court, an application could be made for that recorded evidence to be put to him in cross-examination (paras. 8-9; para. 15)."

7.        The Royal Court's decision was based on the English case of Hollington v Hewthorn & Company, Limited & Anor [1943] K.B. 587.  Commissioner Hamon therefore stated at paragraph 8 as follows: -

"8 Both counsel referred to Hollington v. F. Hewthorn & Co. Ltd. (3). It is trite law to say that anything sought to be admitted in evidence must be of sufficient relevance to be admitted. Facts in issue must normally be proved by evidence. Hollington v. F. Hewthorn & Co. Ltd. established that evidence of a conviction is generally irrelevant. It must be recalled that, on the facts of a case, the plaintiff in a civil action for negligence on the part of the defendant driver (the driver of the plaintiff's car having died after the action was brought) sought to give evidence of the conviction of the defendant driver for careless driving and of a statement made by the deceased driver of the plaintiff's car to a police officer. In the judgment of the Court of Appeal, Goddard, L.J. said ([1943] 2 All E.R. at 40): "In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even were it proved that it was the accident that led to the prosecution, the conviction proves no more than what has just been stated. The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court: It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages. Assume that evidence is called to prove that the defendant did collide with the plaintiff, that has only an evidential value on the issue as to whether the defendant, by driving carelessly, caused damage to the plaintiff. In order to link up or identify the careless driving with the accident, it would be necessary in most cases, probably in all, to call substantially the same evidence before the court trying the claim for personal injuries, and so proof of the conviction by itself would amount to no more than proof that the criminal court came to the conclusion that the defendant was guilty. It is admitted that the conviction is in no sense an estoppel, but only evidence to which the court or a jury can attach such weight as they think proper. Nevertheless, it is obvious that once the defendant challenges the propriety of the conviction, the court, on the subsequent trial, would have to retry the criminal case to find out what weight ought to be attached to the result. It frequently happens that a bystander has a complete and full view of an accident; it is beyond question that while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide; but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant; but his opinion is not. The well-recognized exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant.""

8.        Commissioner Hamon's conclusions are found at paragraphs 11 to 14 as follows: -

"11 This in my view must be so, for the judgments (and Hollington v. F. Hewthorn & Co. Ltd. was dealing essentially with a conviction) are in essence expressions of opinion and as such they are inadmissible. The only Jersey case which counsel have been able to identify is Corby v. Le Main (2). The court in that case dealt with the criticisms of Hollington v. F. Hewthorn & Co. Ltd. and certain judgments by Lord Denning (who appeared as counsel in Hollington v. F. Hewthorn & Co. Lid.) and in particular to the case of Mellkenny v. Chief Constable of W. Midlands (4). This case turned on the question of issue estoppel and in that case Lord Denning, M.R. said this ([1980] Q.B. at 319):

"Beyond doubt, Hollington v. Hewthorn [1943] K.B. 587 was wrongly decided. It was done in ignorance of previous authorities. It was done per incuriam. If it were necessary to depart from it today, I would do so without hesitation. But it is unnecessary. It has been replaced by section 11 of the Civil Evidence Act 1968; and it is to that section that we must turn for the modem law."

12 The Criminal Evidence Act 1968 does not apply in this jurisdiction. Surprisingly, the Civil Evidence (Jersey) Law 2003, registered by the Royal Court on March 21st, 2003 (having been sanctioned by the Privy Council on the February 27th, 2003) has not yet come into force and I decline to consider the provisions until such times as the States, by act, make an appointed day for it.

13 In the context of Mellkenny v. Chief Constable of W. Midlands, the important decision of State of Qatar v. Al Thani (5) has been noted, where the court said (1999 JLR at 126): "We qualify the proposition [that the doctrine of stare decisis as expounded in the English courts is not part of the law of Jersey] only because, in our judgment, it is open to the Royal Court, as it would be to a Scottish court to decline to follow a decision which has been invalidated by subsequent legislation or some such compelling change of circumstance."

14 Despite that, and despite the powerful arguments of Advocate Scholefield, I can see no compelling reason to allow the Relief Magistrate's judgment on the acquittal, the previous statements of the parties and their witnesses, nor the transcript of evidence in the Magistrate's Court to be before the Jurats in this civil action."

9.        However, in Corby and Lewis v Le Main [1982] JJ 157 the Royal Court, in response to a complaint of slander by the second plaintiff allowed the defendant to prove a conviction of the second defendant relevant to the second plaintiff's claim for slander.  Corby noted by the time of its decision that Hollington had been overruled by the Civil Evidence Act 1968 in England.

10.      Crill, Bailiff also noted subsequent criticisms of Hollington by Lord Denning (the unsuccessful counsel in Hollington) in Goody v. Odhanta Press Limited [1967] 1 Q.B. 333 and Mellkenny v. Chief Constable of W. Midlands [1980] Q.B. 293.  In his criticisms in Mellkenny Lord Denning referred to a New Zealand Court of Appeal case of Jorgensen v New Media (Auckland) Limited [1969] NZLR 961.  At that time however the Royal Court did not have access to the Jorgensen judgment.  For this case however I asked if a copy was available, and one was provided by counsel. 

11.      The difficulty I faced was that on the one hand Gosselin had applied Hollington whereas, in Corby, the defendant had been allowed to prove the second plaintiff's conviction.  The conclusion I have reached was that Gosselin could be distinguished because fundamentally it was about whether evidence of an acquittal by a criminal court could be adduced in evidence in a subsequent claim for damages.  This is clear from paragraph 14.  I was not however persuaded that Gosselin was ruling that Corby was wrongly decided in admitting evidence of a criminal conviction in later civil proceedings.  Commissioner Hamon does not say that Corby was wrongly decided.  Rather he appears to have limited his decision to whether or not the Relief Magistrate's judgment on the acquittal was admissible.  That conclusion is entirely understandable because evidence of an acquittal in criminal proceedings with its higher burden of proof does not mean that a civil court will not find on the balance of probabilities whether or not a particular individual is responsible for a particular act or course of conduct.  To the extent that Commissioner Hamon was saying at paragraph 11 of Gosselin that all convictions are expression of opinion and are inadmissible, in my judgment that is a dicta only and is inconsistent with Corby. 

12.      I therefore reached the conclusion it was not appropriate to strike out the references to the conviction on the basis of one Royal Court judgment where another Royal Court judgment had allowed evidence on a conviction to be admitted.  I consider that the ratio of Gosselin is in respect of acquittals only.

13.      If I am wrong in that analysis and there are two inconsistent decisions of the Royal Court, the conclusion I have reached was to prefer Corby.  My reasons for reaching that conclusion is firstly that to apply Hollington would be to give effect to an English case which no longer represents English law.

14.      Secondly, allowing evidence of a criminal conviction to be admitted without having to retry the entire case in a civil court is preferable for the reasons found in the New Zealand case of Jorgensen referred to above.  This was articulated at page 976 lines 32; page 977 line 6 as follows: -

"In my opinion a finding of guilty after a trial in which one of the parties to the subsequent civil action had every opportunity of defending himself cannot possibly be regarded as being of no greater weight than the opinion of a witness. There is, I think, force in the observation of Mr Wright in the Canadian Bar Review that  "To state that a civilised community is willing to "see a man hanged on such a finding of fact but to treat such finding as a "mere opinion in a subsequent case involving a matter of dollars and "cents is a reflection on the administration of justice as well as an offence "to common sense". In my opinion it emerges very plainly indeed that in the opinion of the influential Law Reform Committee, the ground taken by the English Court of Appeal in Hollington v. Hewthorn that the opinion of the criminal Court as to the defendant driver's guilt was irrelevant, was not justified. The members of the committee said: "Rationalise it" how one will, the decision in this case offends one's sense of justice ". Then after pointing out that the onus of proof of culpability in criminal cases was higher than in civil, the committee rejected the view that the conviction of the defendant driver of careless driving at the time and place of the accident was not even prima facie evidence of his negligent  driving at that time and place saying: "We consider that such a conviction has high probative value in establishing the cause of action in a subsequent civil action founded upon the same conduct in which the onus of proof is lower. We have no doubt in principle that the evidence of the conviction should be admissible. In my opinion then the principal ground upon which Hollington v. Hewthorn was decided should not be accepted. At a later stage in my judgment I will give consideration to the question whether notwithstanding its relevancy evidence of a conviction is nevertheless inadmissible on the ground that it does not come within one or other of the recognised exceptions to the hearsay rule."

15.      I gratefully adopt this reasoning.

16.      That is not to say that there may not be practical difficulties in particular cases about what weight should be given to proof of a conviction.  This was also considered in the Jorgensen case at page 980 lines 27 to 36 as follows: -

"In conclusion I should perhaps mention that I do not overlook the practical difficulties which in some cases may arise in determining what weight should be given to proof of a conviction of a crime which is again in issue in the civil proceedings but I think these difficulties are more apparent than real for the weight to be given to the conviction will vary very considerably according to the nature of the civil action with which the Court is concerned and the circumstances surrounding the conviction. If it is a Judge alone case, he should have little difficulty in determining what weight should be given to the conviction. If it is a jury case no doubt it will require a careful direction by the Judge."

17.      The reference to the defendant's conviction in this matter should not therefore be struck out and the plaintiff is entitled to adduce evidence of that conviction before the Royal Court.  It will be for the Royal Court to decide what weight to adduce to that conviction.  What evidence the defendant might be permitted to adduce in response to it is also a matter for another day because at this stage the defendant has not yet filed an answer.  It is only when an answer is filed and the defendant articulates what grounds he disputes the conviction, can consideration be given about what evidence might then be permitted. 

le criminel tient le civil en etat

18.      In relation to this part of the defendant's application, there is no dispute between the parties on the applicable principles as to when the maxim applies which were considered in Glazebrook v Housing Committee of The States of Jersey [2000] JLR 301 and in Jersey Financial Services Commission v W [2015] (1) JLR 412.  The JFSC decision was an appeal against a decision of mine where I had summarised the principles at paragraphs 16 to 17 as follows, and which summary the Royal Court endorsed: -

"16-ƒUltimately, it was not disputed by any of the parties that there is a discretion vested in me to stay proceedings where the continuation of one part of the proceedings may prejudice the fairness of the trial of the other proceedings. It also was not really in dispute that the power to be exercised is one that can only be exercised with great care and where there is a real risk of serious prejudice which may lead to injustice. It should also be remembered that the judge in criminal proceedings has extensive powers to control those proceedings and ensure fairness.

17-ƒI also accept that what the court should be concerned about, as referred to in Crane is a manifest risk of injustice rather than the existence of a mere possibility of injustice. I also must have regard to the strong public interest in the respondent being able to exercise its functions just as there is a strong public interest in disqualification proceedings being exercised for the protection of the public. It is clearly important that the respondent is not unduly restricted in the exercise of its powers because of the possibility of a criminal investigation. The issue for me to decide is whether, and if so how, I should exercise the discretion vested in me to stay W's appeal, having regard to the above principles."

 

19.      "At present, the defendant has retained legal advisers to review whether there are grounds to approach the Lieutenant Governor to invite the Court of Appeal to reconsider the defendant's conviction.  I was also informed by Advocate Austin that further enquiries have been made of the police because the defendant's advisers were of the view that full disclosure had not been made.  If the police have not made full disclosure, I accepted that such a situation might lead the Lieutenant Governor to refer matters back to the Court of Appeal, if such non-disclosure was significant in relation to the current conviction.

20.      However, at this stage, I was not persuaded that it was appropriate to exercise my discretion to stay the civil proceedings.  As matters stand there may or may not be an application to the Lieutenant Governor which may or may not lead to a referral back to the Court of Appeal.  The outcome of the enquiries with the police are also unknown.  I was not therefore satisfied that allowing the civil proceedings to proceed by requiring the defendant to file an answer in the context of the possibility of the various steps I have referred to above met the threshold of there being a real risk of serious prejudice which might lead to injustice.

21.      To put matters in another way I was not satisfied there was a manifest risk of injustice in allowing the civil proceedings to progress by requiring the filing of pleadings, leading to a directions hearing in due course which would require the filing of discovery and the filing of evidence as well as addressing the issues I have referred to above about what evidence might be admissible.

22.      The conclusion I have reached does not mean however that the defendant might not make a further application for a stay should circumstances change.  My decision was therefore that no grounds existed as at the date of the application which justified a stay as matters currently stand.

Costs

23.      Finally, I ordered the defendant to pay the plaintiff's costs on the standard basis, such costs to be summarily assessed if not agreed.  I reached this view as the defendant had both sought to strike out part of the order of justice and to stay the proceedings both of which applications have been unsuccessful.  The orders sought were more than case management issues which therefore justified a costs order in the plaintiff's favour.  Enforcement of these costs' orders was stayed however until expiry of any time limit for the defendant to appeal against this decision and  if an appeal is filed until determination of the said appeal.

Authorities

Court of Appeal (Jersey) Law 1961. 

Gosselin v Capital Properties Limited [2004] JLR 74. 

Hollington v Hewthorn & Company, Limited & Anor [1943] K.B. 587

Corby and Lewis v Le Main [1982] JJ 157. 

Civil Evidence Act 1968. 

Goody v. Odhanta Press Limited [1967] 1 Q.B. 333. 

Mellkenny v. Chief Constable of W. Midlands [1980] Q.B. 293. 

Jorgensen v New Media (Auckland) Limited [1969] NZLR 961. 

Glazebrook v Housing Committee of The States of Jersey [2000] JLR 301. 

Jersey Financial Services Commission v W [2015] (1) JLR 412.