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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> FRIEL, VINCENT FRIEL AGAINST DR IAN BROWN [2019] ScotCS CSOH_30 (22 March 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_30.html
Cite as: 2019 SLT 377, [2019] ScotCS CSOH_30, 2019 GWD 11-146, [2019] CSOH 30, 2019 Rep LR 78
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A218/17
OUTER HOUSE, COURT OF SESSION
OPINION OF LADY CARMICHAEL
In the cause
VINCENT FRIEL
against
DR IAN BROWN
[2019] CSOH 30
Pursuer
Defender
Pursuer: Sutherland QC; Lefevre Litigation
Defender: McGregor; BTO Solicitors
22 March 2019
Introduction
[1] The pursuer was convicted by a jury on 17 February 2016 of offences under sections 1
and 1A of the Road Traffic Act 1988. The convictions relate to an accident which occurred
on 18 January 2014. The pursuer was driving a car which struck two pedestrians within the
confines of a pedestrian crossing, killing one and seriously injuring the other. At his trial he
lodged a special defence of automatism, and led evidence in support of it.
[2] In this action the pursuer pleads that he suffered a vaso vagal attack and blacked out,
and that he was in that condition when the accident occurred. He avers that this was
brought on by a sudden or rapid fall in blood pressure and heart rate. He had for some time
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before the accident been receiving medical treatment from the defender, his general
practitioner, for hypertension, including the prescription of an antihypertensive medication,
Losartan. On 14 November 2013 the defender decided to add a second antihypertensive
drug to the pursuer’s regime, namely Tildiem. The pursuer attributes his loss of
consciousness on 18 January 2014 to the combination of medications he was prescribed, and
in particular the addition of Tildiem. He pleads that the rapid fall in his blood pressure was
caused or materially contributed to by the addition of Tildiem to his regime.
[3] The pursuer alleges that the defender was negligent in prescribing Tildiem, and in
failing to provide the pursuer with information about the risks of using it, and using it in
combination with other drugs.
[4] He seeks reparation from the defender for psychological injury he sustained as a
result of the accident. He also seeks the cost incurred in instructing his defence, for which
he required to pay privately. He claims wage loss, both in respect of the period he spent in
prison and more generally.
[5] The defender has two preliminary pleas. The first is a plea to the relevancy and
specification of the action. It was advanced on the basis that the pleadings disclosed that the
action was an abuse of process. The defender pled that the action was an abuse of process,
in Answer 10. Mr McGregor doubted whether it was strictly necessary to advance a plea in
law to seek the dismissal of an action as an abuse of process. The second plea was based on
the maxim or brocard ex turpi causa non oritur actio. Although Mr McGregor initially
advanced both of those pleas, he conceded that the second should be reserved for discussion
at a proof before answer if he were to be unsuccessful in having the action dismissed on the
basis of the first. I am concerned, therefore, only with whether the action falls to be
dismissed because it is an abuse of process.
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[6] It is admitted by virtue of there having been no response to the defender’s notice to
admit, that the pursuer lodged a special defence of automatism at his trial; that he led
evidence in support of that special defence; and that the jury rejected the special defence.
The terms of the special defence are not averred in the pleadings or set out in the notice to
admit. A copy of the special defence was produced as an appendix to the pursuer’s note of
argument number 23 of process, and parties agreed that I should proceed on the basis that it
is undisputed that the special defence was in these terms:
“… if the offences libelled in the charges on the indictment were committed, and if
committed by him, he was in a state of unconsciousness at the time of the alleged
offence as a result of a medical condition which manifested itself by a fall in blood
pressure and a consequent profound faint reaction, namely a vasovagal attack, which
condition was not knowingly self-induced, was not foreseeable to the accused and
resulted in total alienation of reason amounting to total loss of control of actions.”
Summary of submissions
[7] The proposition for the defender was this. In order to succeed in proving his case
against the defender, the pursuer would have to prove that he suffered a vasovagal attack.
A finding that he did would undermine the verdict of the jury convicting him. The jury
must, standing the terms of the special defence before them, have rejected the proposition
that he suffered such an attack, and been satisfied beyond reasonable doubt that he did not
suffer such an attack. To permit the pursuer to advance the case pled would therefore
amount to a collateral attack on his conviction. Such collateral attacks are contrary to public
policy and therefore an abuse of the processes of the court: Hunter v Chief Constable of the
West Midlands Police [1982] AC 529, pages 541B-C; 541H-542D. The attack on the conviction
need not be the sole or dominant purpose of the proceedings: the action should be
dismissed.
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[8] There was no Scottish case in which that course had been followed in similar
circumstances, or in which such a collateral attack had been found to be an abuse of process.
All the relevant authorities came from the courts of England and Wales or the Privy Council:
certain observations about abuse of process, and about the decision in Hunter, had been
made. The law regarding the inherent power of the Court had developed significantly since
those observations were made: Tonner v Reiach and Hall (A Firm) 2008 SC 1. That there was
no rule of court providing a procedure for dismissal in respect of an abuse of process of the
sort alleged was no bar to my dismissing the action.
[9] Mr McGregor accepted this was not a case in which the only or dominant purpose of
the present proceedings was to attack the conviction. He did not suggest that the pursuer
was not genuinely seeking to recover damages from his general practitioner on the basis of
alleged clinical negligence.
[10] Ms Sutherland did not accept that Hunter represented the law of Scotland. Her
submission, however, focused on section 10(2) of the Law Reform (Miscellaneous
Provisions) (Scotland) Act 1968 (“the 1968 Act”). Section 10(1) and (2) provide, so far as is
material:
“10 (1) In any civil proceedings the fact that a person has been convicted of an
offence by or before any court in the United Kingdom … shall … be admissible in
evidence for the purpose of proving, where to do so is relevant to any issue in those
proceedings, that he committed that offence, whether he was so convicted upon a
plea of guilty or otherwise and whether or not he is a party to the civil proceedings;
but no conviction other than a subsisting one shall be admissible in evidence by
virtue of this section.
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(2) In any civil proceedings in which by virtue of this section a person is proved to
have been convicted of an offence by or before any court in the United Kingdom …
—
(a) he shall be taken to have committed that offence unless the contrary is
proved.”
[11] Ms Sutherland submitted that the pursuer was doing no more than section 10(2)(a)
entitled him to do, namely seeking to prove that he had not committed the offence of which
he had been convicted. If he was entitled to do so by virtue of a statutory provision, that
paragraph 34. The defender sought to rely on the conviction in the proceedings, and the
pursuer therefore had the benefit of section 10(2)(a). There was nothing in the statutory
language to suggest that only a defender could benefit from its terms by being entitled to
lead evidence to prove that he did not commit an offence of which he had been convicted.
She submitted that a majority finding of guilty – as in the pursuer’s case – might carry less
weight than a unanimous finding: Cronie v Messenger and another, (unreported) Temporary
Judge CJ MacAulay QC, 25 June 2004, paragraph 26.
[12] Counsel did not raise any issue as to whether the plea in law advanced was one apt
to encompass the issue of abuse of process. She did not dispute that the Court could, in the
exercise of its inherent jurisdiction, dismiss an action as an abuse of process. She did,
however, submit that the power to dismiss an action summarily for abuse of process was a
draconian one which must be exercised with great caution, and only as a last resort: Grubb v
Finlay 2018 SLT 463, at paragraphs 34-36.
[13] Ms Sutherland also sought to persuade me that the matter at issue in the present
action was whether the pursuer had suffered a vasovagal attack as a result of a prescribing
error by the defender. The allegation of a prescribing error was not something that had been
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before the jury in the criminal trial. The pleadings, at page 21E of the Closed Record, in
response to the allegation that the action constituted an abuse of process, were:
“The issues against the current defender are different from the issues relevant to the
trial. The pursuer did not cause harm to the defender. The allegations against the
current defender relate to misprescribing and a failure to inform which are entirely
different from the issues at the trial.”
[14] Mr McGregor made a number of submissions about section 10(2). He recognised
that there was on the face of matters some potential tension between its terms and the notion
that an attempt to lead evidence to rebut the presumption that the offence had been
committed was contrary to public policy and an abuse of process. He drew attention to
passages in the speech of Lord Diplock in Hunter at pages 543-544. The statute contained
nothing to limit the right to found on a conviction as raising a presumption that the offence
had been committed to a pursuer, or the right to lead evidence in rebuttal to a defender. It
did not appear, however, that the statute had been intended to permit a pursuer at his own
hand to bring proceedings which involved a collateral challenge to his conviction.
[15] When he came to make submissions in response to those of Ms Sutherland, he
submitted that on a proper analysis the defender was not founding on the conviction in the
way contemplated by the statute. The defender was not seeking to establish, at least so far
as the submission based on abuse of process was concerned, on a proposition that the
offence had been committed. All that was material for that purpose of his first plea in law
was that there was a conviction. If that plea in law were rejected, and the court came to
consider his second, after proof, the situation would be different, because whether the
second plea in law could be successfully invoked would depend on the extent of the
pursuer’s responsibility and culpability. As the defender was not invoking section 10(1) in
relation to his first plea in law, there was no room for the pursuer to invoke section 10(2)(a).
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[16] In the course of the debate I raised with parties the question of the mischief that the
1968 Act was intended to address, given that there was a dispute between them as to
whether it should be construed as permitting the pursuer to bring the present action.
Sections 10 and 12 of it are in practically identical terms to sections 11 and 13 of the Civil
Evidence Act 1968, which came to be enacted following recommendations made in the
Fifteenth Report of the Law Reform Committee (Cmnd 3391), presented to Parliament in
September 1967. Those are summarised in the annotations to the Civil Evidence Act in the
Current Law Statutes which were discussed in the course of the hearing. Parties lodged
further written submissions about the report.
The law
Abuse of process
[17] As I have indicated, none of the cases supporting the proposition that a collateral
attack in civil proceedings on a conviction is an abuse of process was decided by a Scottish
court. The first appears to have been Hunter. Mr Hunter was one of the six men convicted
of murders committed by means of detonating bombs in two pubs in Birmingham in 1974
(the Birmingham Six). He claimed damages from the police for assaulting him. Evidence of
confessions was essential to the Crown case. In the course of the earlier criminal
proceedings there had been an objection to the admissibility of evidence of confessions, on
the basis that the confessions had been obtained by the police inflicting violence on
Mr Hunter and his co-accused. Following a trial within a trial, the trial judge ruled that the
confessions were admissible. He found that the evidence of the police established beyond
reasonable doubt that there had been no physical violence by the police to the accused, and
that each of the accused in claiming that there had been, had committed perjury (Hunter,
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page 538F-G). The allegations were repeated in evidence heard by the jury as relevant to the
weight to be attached to the confessions. Mr Hunter appealed against conviction,
unsuccessfully, but did not challenge the finding of the judge as to admissibility or his
directions to the jury regarding the evidence in question. The violence founded on by him
in the criminal trial was the same violence towards him by the police alleged in the civil
proceedings. As is notorious, further criminal appeals followed after the decision in the civil
proceedings. The ultimate outcome is reported in R v McIlkenny (Richard) (1991) 93 Cr App
R 287.
[18] The House of Lords struck out Mr Hunter’s claim against the police as an abuse of
process. Lord Diplock gave the only substantive speech, which includes the following
passages at pages 541 and 542:
“The abuse of process which the instant case exemplifies is the initiation of
proceedings in a court of justice for the purpose of mounting a collateral attack upon
a final decision against the intending plaintiff which has been made by another court
of competent jurisdiction in previous proceedings in which the intending plaintiff
had a full opportunity of contesting the decision in the court by which it was made.
The proper method of attacking the decision by Bridge J in the murder trial that
Hunter was not assaulted by the police before his oral confession was obtained
would have been to make the contention that the judge's ruling that the confession
was admissible had been erroneous a ground of his appeal against his conviction to
the Criminal Division of the Court of Appeal. This Hunter did not do. Had he or
any of his fellow murderers done so, application could have been made on that
appeal to tender to the court as 'fresh evidence' all material upon which Hunter
would now seek to rely in his civil action against the police for damages for assault,
if it were allowed to continue. But since, quite apart from the tenuous character of
such evidence, it is not now seriously disputed that it was available to the defendants
at the time of the murder trial itself and could have been adduced then had those
who were acting for him or any of the other Birmingham Bombers at the trial
thought that to do so would help their case, any application for its admission on the
appeal to the Court of Appeal (Criminal Division) would have been doomed to
failure.
It would call for a degree of credulity too extreme to be expected even from judicial
members of your Lordships' House to fail to recognise that the dominant purpose of
this action, and the parallel actions brought by the other Birmingham Bombers so far
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as they are brought against the police, has not been to recover damages but is
brought in an endeavour to establish, long after the event when memories have
faded and witnesses other than the Birmingham Bombers themselves may be
difficult to trace, that the confessions on the evidence on which they were convicted
were induced by police violence, with a view to putting pressure on the Home
Secretary to release them from the life sentences that they are otherwise likely to
continue to serve for many years to come.
…
My Lords, collateral attack upon a final decision of a court of competent jurisdiction
may take a variety of forms. It is not surprising that no reported case is to be found
in which the facts present a precise parallel with those of the instant case. But the
principle applicable is, in my view, simply and clearly stated in those passages from
speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665 , 668 which
are cited by Goff LJ in his judgment in the instant case. I need only repeat an extract
from the passage which he cites from the judgment of A L Smith LJ:
'... the court ought to be slow to strike out a statement of claim or defence,
and to dismiss an action as frivolous and vexatious, yet it ought to do so
when, as here, it has been shown that the identical question sought to be
raised has been already decided by a competent court.'
The passage from Lord Halsbury's speech deserves repetition here in full:
'... I think it would be a scandal to the administration of justice if, the same
question having been disposed of by one case, the litigant were to be
permitted by changing the form of the proceedings to set up the same case
again.'
In the instant case the relevant final decision by a competent court in which the
identical question sought to be raised has been already decided is the ruling of
Bridge J, on the voir dire in the murder trial, that Hunter's confession was
admissible. Initially his ruling may have been provisional in the limited sense that
up to the time that the jury brought in their verdict he had power to reconsider it in
the light of any further evidence that might emerge when the whole question of the
circumstances in which the confession was obtained was gone into again before the
jury on the question of the weight to be attached to it: Reg v Watson (Campbell)
[1980] 1 WLR 991. But his ruling became final when the trial ended with the return of the
jury's verdict of guilty and the pronouncement by the judge of the mandatory
sentence of life imprisonment. Bridge J thereupon became functus officio. His ruling
that the confession was not obtained by the use of violence by the police, as Hunter
had alleged, could thereafter only be upset upon appeal to the Court of Appeal
(Criminal Division).”
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[19] The decision in Hunter has been followed and applied on a number of occasions. In
Hurnam the Privy Council considered that the initiation of a civil action was comparable to
that of the action in Hunter and struck it out. The appellant, a former barrister, was
convicted of conspiring to hinder a police inquiry by fabricating an alibi for a former client.
He raised civil proceedings for damages against the former client and the client’s brother,
alleging that they had made false and malicious allegations against him, and that he had
suffered loss and damage as a result. The Board took the view that the real purpose of the
action was not to obtain damages, but to rehabilitate his reputation and reopen the criminal
proceedings: paragraph 31. A factor informing that view was the circumstance that there
was no real prospect of recovering damages from either of the defendants.
[20] The scope of abuse of process in the law of England and Wales on the basis of
collateral attack on an earlier decision appears to extend beyond challenges to criminal
convictions. It is not limited to collateral attacks on criminal convictions, but applies in a
variety of other situations. The attempt to invoke it (successful at first instance, but reversed
on appeal) in Kamoka was in relation to civil claims alleging unlawful detention and
unlawful restriction of liberty by Control Orders. They involved allegations of suppression
of evidence in proceedings in the Special Immigration Appeals Commission and in other
proceedings relative to the Control Orders. Some of the findings in the earlier proceedings
were open, but others were closed, and based on evidence adduced in closed proceedings.
In Kamoka Flaux LJ carries out an extensive review of relevant authority at paragraphs 42
and following. It is apparent that the doctrine of abuse of process can sometimes apply
where all the proceedings in question are civil proceedings. It encompasses some situations
which in Scotland would probably be dealt with by a plea of “competent and omitted”:
Kamoka, paragraph 47. Flaux LJ summarises matters in this way at paragraph 42:
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“The power of the courts to strike out proceedings for abuse of process has
developed in parallel with issue estoppel and res judicata (often but not invariably to
be deployed when issue estoppel and/or res judicata are not applicable) essentially to
protect two interests: “the private interest of a party not to be vexed twice for the
same reason and the public interest of the state in not having issues repeatedly
[2017] 1 Lloyd’s Rep 136 at [48(1)].”
In a similar vein, he refers at paragraph 46 to Lord Hoffman’s explanation of the policies that
underlie discouragement of relitigation of disputes in Arthur JS Hall & Co v Simons [2002] 1
AC 615, at page 701A-C.
[21] It appears also that different views have been taken in different cases as to whether
the doctrine may be invoked where the claim is a sham, and not honest or bona fide: see
paragraph 57, contrasting the approach of Stephenson LJ in Bragg v Oceanus Mutual
Underwriting Association (Bermuda) Ltd [1982] 2 Lloyd’s Rep 132 with that of Stuart-Smith LJ
in Ashmore v British Coal Corporation [1990] 2 QB 338 at page 352D-F; see also Amin, Moore-
Bick LJ at paragraphs 13 and 14, citing Smith v Linskills [1996] 1 WLR 763.
“13. … In Smith v Linskills … the claimant, who had been convicted of an offence of
aggravated burglary, brought proceedings against his solicitors seeking damages on
the grounds that their negligent preparation of his defence had resulted in his
conviction. As in the present case, the claimant contended that the issues raised by
his claim were different from those that arose at his trial, but that did not prevent the
proceedings from constituting an abuse of process. Sir Thomas Bingham MR giving
the judgment of the court said at page 768H:
“M. Andrew Nicol, for Mr Smith, argues that the issue in the present
proceedings is not the same issue as was decided in the Crown Court. To an
extent this is so. In the Crown Court the question was whether, applying the
criminal standard of proof, Mr Smith was shown to have committed the
crime with which he was charged. In the present proceedings the issue is
whether his former solicitor handled his defence negligently. It is, however,
plain that the thrust of his case in these proceedings is that if his criminal
defence had been handled with proper care he would not, and should not,
have been convicted. Thus the soundness or otherwise of his criminal
conviction is an issue at the heart of these proceedings. Were he to recover
substantial damages, it could only be on the basis that he should not have
been convicted. Even if he were to establish negligence, he could recover no
more than nominal damages at best if the court were to conclude that even if
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his case had been handled with proper care he would still have been
convicted. It follows, in our judgment, that these proceedings do involve a
collateral attack upon the decision of the Crown Court. We understand Lord
Diplock, by “collateral,” to have meant an attack not made in the proceedings
which gave rise to the decision which it is sought to impugn; not, in other
words, an attack made by way of appeal in the earlier proceedings
themselves.”
14. As to the claimant’s motive for bringing the proceedings, Sir Thomas said at
page 771D:
“The rule with which we are here concerned rests on public policy. The basis
of that public policy, further considered below, is the undesirable effect of
relitigating issues such as this. We cannot see how those undesirable effects
are mitigated by the motive of the intending plaintiff to recover damages
rather than simply to establish the unsoundness of the earlier decision.””
[22] The high point of the defender’s submission, so far as the recognition of Hunter abuse
of process in Scots law is concerned, was Wright v Paton Farrell. It concerned an action of
damages against solicitors alleging negligence in the conduct of a criminal trial. The
criminal conviction had already been quashed on the basis of defective representation. The
action was dismissed because the averments as to causation were inadequate. The
defenders had, however, sought dismissal also on the grounds that the solicitor was
immune from suit. In that connection the Lord President (Hamilton) made the following
observations:
“17. There is, in my view, a strong public interest in the soundness of subsisting
criminal convictions not being capable of challenge, directly or indirectly, otherwise
than by the processes of appeal or review set down by Parliament or recognised by
well-established criminal procedure…
18. As Lord Hope observed in Hall (p715) public confidence in the administration of
justice “is likely to be shaken if a judge in a civil action were able to hold that a
person whose conviction has been upheld on appeal would not have been convicted
but for his advocate’s negligence.” A similar effect on public confidence is likely
where no appeal is taken or where leave to appeal has been refused.
19. Reference was made in the course of the discussion to sec 10 of the Law
Reform (Miscellaneous Provisions) (Scotland) Act 1968 (cap 70) which, by subsec (1)
makes, for certain purposes, a subsisting criminal conviction admissible in civil
proceedings. By subsec (2) it is provided that in the civil proceedings: ‘(a) he [the
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person against whom a conviction subsists] shall be taken to have committed that
offence unless the contrary is proved’. The object of sec 10 is to allow any pertinent
conviction to be used for a purpose relevant to an issue in the civil proceedings but
with a right to the civil party against whom the conviction is sought to be used to
prove that he did not commit the offence in question. The section is most commonly
invoked in actions of damages for personal injuries where the defender has been
convicted in summary proceedings of a road traffic offence or of an offence related to
health or safety at work. The soundness of the convictions in such cases are, in my
experience, rarely challenged. The object of the exception is to afford, by way of
defence, a means of rebutting the implication of relevant fault which might otherwise
be drawn from the conviction. While a finding in the civil proceedings that the party
convicted had not committed the offence in question might well raise a doubt as to
the soundness of the conviction, it has never, so far as I am aware, been suggested
that this provision made by Parliament is, given its scope and purpose, likely to
shake general public confidence in the administration of criminal justice.
20. The same cannot, in my view, be said for collateral challenges arising from
civil actions for reparation by convicted persons. While a direct challenge in civil
proceedings to a criminal conviction could be answered by a plea to the competency
(Moore v Secretary of State for Scotland), an indirect challenge by way of an action of
damages against the legal representative who conducted the trial would be less easy
to deal with. It might well be difficult to distinguish, on the face of the pleadings,
bona fide claims for damages for professional negligence from covert attempts by
convicted persons to put in doubt their convictions. Hunter v Chief Constable, West
Midlands Police has no direct application in Scotland; in any event, it appears to have
proceeded on a view as to the underlying purpose of that litigation which in most
cases might not be as readily capable of divination. While there are indications that
the law of Scotland may be developing a principle of ‘abuse of process’, I doubt
whether it would be possible readily to identify and, under current procedural
arrangements, to deal with cases falling within any such category. As Lord Osborne
observes, the views of the majority in Hall appear to have been strongly influenced
by the existence of well-developed procedural arrangements in England and Wales
which have currently no equivalent in Scotland.
21. It is said, however, that whatever merits there may be generally in a concern
about collateral challenge to criminal convictions, that concern can have no relevance
where, by due criminal process, any such conviction has been set aside, as in the
present case. There is force in that point. If heading (3) [relitigation or collateral
challenge] were the only consideration in favour of retaining an immunity, there
would, in my view, be a strong argument for restricting that immunity to cases
where there was, at the relevant time, a subsisting conviction.”
[23] The law relating to the inherent power of the Court has developed since then. A
specific procedural provision providing that an action might be struck out for want of
prosecution is not required for a Scottish court to exercise its inherent power to strike it out
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on that ground: Tonner. It is well established that the court can exercise its inherent
jurisdiction in the case of an abuse of process by way of a procedural sanction such as
(Gill), paragraph 14.
The Law Reform (Miscellaneous Provisions) (Scotland) Act 1968
[24] The provisions of sections 10 and 12 of the 1968 Act are virtually identical to those of
sections 11 and 13 of the Civil Evidence Act 1968. Those latter provisions resulted from
recommendations made in the fifteenth Report of the Law Reform Committee (Cmnd 3391).
The subject of that report was “The Rule in Hollington v Hewthorn”. This was a reference to
Hollington v F Hewthorn and Co Ltd [1943] KB 587. The case involved damage sustained to
the plaintiff’s car in an accident. The plaintiff sued the driver of the other car. The driver of
the plaintiff’s car died before the case was heard. He had been the plaintiff’s only witness.
The plaintiff tried to lead evidence of the defendant’s driver’s conviction as prima facie
evidence of negligence. It was held to be inadmissible. The decision was widely criticised,
and regarded by some as wrongly decided: see eg Goody v Odhams Press [1967] 1 QB 333,
Lord Denning MR at page 339F-G; Hunter, Lord Diplock, page 643D-E. It was thought to be
wrong that a decision in criminal proceedings should have no probative value where proof
of the same conduct was required in civil proceedings.
[25] The application of the rule in defamation proceedings had also given rise to concern.
A defendant could not rely on a conviction as proving that the plaintiff had in fact
committed the crime of which he had been convicted, but was restricted to a plea of partial
justification: Goody; see also Hinds v Sparks (1964) The Times, July 28, 30. It was against the
background of these concerns that the Law Reform Committee made its recommendations.
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[26] The question of public policy about relitigation of issues was considered by the Law
Reform Committee. The following passages from its report explain why the
recommendations differed as between actions for defamation and other types of civil action:
“26. As will have been apparent, our general recommendations as to the
admissibility of evidence in civil proceedings of convictions in previous criminal
proceedings and the weight to be given to such convictions, and as to the non-
admissibility of acquittals, have been based solely upon consideration of their
respective probative values. But, as some recent cases have shown, the rule in
Hollington v Hewthorn can have practical consequences which raise a wider question
of public policy to which our general recommendations may not provide a sufficient
answer. The rule makes it possible in some circumstances to obtain what is in effect
a re-trial of criminal proceedings in the guise of a civil action for defamation brought
by the person who has been convicted or acquitted in the criminal proceedings. …
27. … In actions, other than those for defamation, to which our general
recommendations apply, the materiality of the conviction is not to prove that the
convicted person was guilty of the criminal offence of which he was convicted, but to
prove that his conduct was such as to give rise to a civil liability on the part either of
the convicted person himself or of another person such as his employer or an insurer.
Because this liability is additional to the penal consequences of the conviction and
may fall upon someone other than the convicted person, we have come to the
conclusion, on balance, that the person upon whom the civil liability will fall should
not be precluded from resisting it by proving, if he can, that the convicted person’s
conduct was not such as the criminal court found it to be. But in actions for
defamation such as those which we have instanced, the only issue, other than that of
damages, is whether a person who has been tried for a criminal offence was guilty of
that criminal offence. The real purpose of the action in the case of a conviction, or the
defence of justification in the case of an acquittal, is to obtain a re-trial of the criminal
proceedings in the case upon different evidence by a court which lacks jurisdiction to
try crime and applies a procedure and standard of proof which the law regards as
inappropriate in criminal proceedings.
28. This raises two related questions of public policy which do not depend upon
the probative value of convictions and acquittals. The first is whether or not a civil
court, in an action to which the Crown is not a party, ought to re-try upon a different
standard of proof the precise issue of guilt of a criminal offence which has already
been tried and determined by a criminal court of competent jurisdiction. The second
is whether any person ought to be at risk of incurring civil liability for stating that
another person was guilty of an offence of which he was convicted, so long as such
conviction has not been set aside upon appeal, or ought ever to be entitled without
incurring civil liability to state that another person was guilty of an offence for which
he had been duly tried and acquitted.
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16
29. We think that the answer to both these questions is ‘No’. The state, nominally
the Crown, has a direct interest in all prosecutions for criminal offences. It has
established a special system of trial and appellate courts for dealing with them.
These courts apply a procedure different from that in civil actions and adopt a
different standard of proof, the purpose of which is to safeguard the interests of the
accused and to ensure that the innocent are not convicted. The penal sanctions
which the criminal courts impose upon those whom they find guilty are enforced by
the executive power of the state. No civil court has jurisdiction to alter or affect
them. Those whom they acquit cannot be put on trial again. Their acquittal is final.
It can only undermine public confidence in the administration of criminal justice if
civil courts in actions between private individuals can be forced to re-try the issue of
guilt which has already been determined by a criminal court and reach a different
conclusion. To a trained lawyer it is no doubt intelligible that a civil court should
reach a different conclusion from that of the criminal court without there having
been any error in the finding of the criminal court. The re-trial in the civil action may
take place many years later, when the witnesses, upon whose evidence the finding of
guilty or not guilty at the criminal trial was based, have died or disappeared or
forgotten what happened. Legal aid is not available in actions for defamation and
one or other of the parties may lack the resources to trace witnesses and documents
and marshall all the relevant evidence. In any event, the onus of proof will be
different from that which the law regards as essential in a criminal trial. But this is
much too technical for the layman. His reaction cannot fail to be: here are two
English courts, one says that A was guilty, the other says that he was not; one of
them must be wrong. And the law is made for laymen. It is on their behalf as
citizens of the state that criminal prosecutions are brought. When such a prosecution
brought in a court of competent jurisdiction results in a conviction which is not set
aside upon appeal, any citizen should, we think, be entitled to say without risk of
incurring any civil liability that the convicted person did commit the offence of
which he was convicted. And, by parity of reasoning, when a prosecution results in
an acquittal, we do not think that he is entitled to say that the acquitted person did
commit the offence of which he was acquitted. In reaching this conclusion we have
not overlooked the argument that there may be exceptional cases in which the public
interest could be served by the Press, or a private citizen, being free to challenge the
correctness of an acquittal, and that our recommendation could be criticised as
tending to restrict freedom of discussion. But we think that, on balance, the greater
public interest lies in inhibiting attempts to use defamation actions as a means of
challenging the findings of criminal courts.”
[27] It seems that the Law Reform Committee did not envisage reliance on a conviction
other than by a party other than the convicted person, seeking to establish liability against
the convicted person or someone liable for his acts or omissions. The convicted person, or
someone else liable for his acts and omissions, would be at risk of incurring an additional
liability and ought to be able to avoid it. The public policy considerations were different
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where defamation actions were concerned. These were that the real purpose of the action
was to retry the criminal case and the confusion that might be produced in the minds of the
public. The Committee recommended that convictions should be conclusive evidence of
guilt in defamation proceedings, and that acquittals should be conclusive as to innocence.
The first of these recommendations, but not the second, featured in the legislation (section 12
of the 1968 Act and section 13 of the Civil Evidence Act). It also appears that the Law
Reform Committee was not considering the possibility of collateral attacks on criminal
convictions by persons initiating actions, other than in the context of defamation actions.
The law of abuse of process, as explained in Hunter, appears then to have developed to deal
with such collateral attacks in proceedings other than defamation cases. No issue of abuse
of process was raised in Goody. Had there been a developed doctrine of that sort the
questions for the Law Reform Committee would have been rather different.
[28] An argument very similar to that advanced by Ms Sutherland in this case was
advanced in Hunter. The arguments are recorded in the following way in the report at
pages 534G-535B. Lord Diplock dealt with this argument in the following way, at
pages 543-544. His reasoning is consistent with the approach taken by the Law Reform
Committee:
“The occasion for the reference of the decision in Hollington v Hewthorn that evidence
of criminal convictions was not admissible in civil actions to the Lord Chancellor's
Law Reform Committee was a notorious libel case in which despite a defence of
justification a criminal who had been convicted of serious offences was awarded
damages by a jury in a civil action against a newspaper for stating that he had
committed the identical offences of which he had been found guilty upon his trial.
So here, unlike the case of Hollington v Hewthorn, the civil action did raise the
identical question that had already been decided against the plaintiff by a competent
court; yet under the rule in Hollington v Hewthorn even the fact of his conviction was
inadmissible in evidence on the plea of justification in the civil action. This is the
mischief, in the initiation of civil proceedings in a court of justice for the purpose of
mounting a collateral attack upon a final decision against the intending plaintiff
which has been reached by a competent court of criminal jurisdiction, that section 13
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of the Act of 1968 was designed to cure. It is to be observed that it makes the
conviction not merely prima facie evidence of the plaintiff's guilt but conclusive
evidence. The provisions of section 13 are thus consistent with and give statutory
recognition to the public policy of prohibiting the use of civil actions to initiate a
collateral attack on a final decision against the intending plaintiff which has been
made by a criminal court of competent jurisdiction.
Section 13 is to be contrasted with section 11. Although section 11 is not in express
terms confined to convictions of defendants to civil actions or persons for whose
tortious acts defendants are vicariously liable, this must in practice inevitably be the
case. It is the plaintiff who will want to rely upon a conviction of the defendant or a
person for whose tortious acts he is vicariously liable, for a criminal offence which
also constitutes the tort for which the plaintiff sues. It is scarcely possible to conceive
of a civil action in which a plaintiff could assist his cause by relying upon his own
conviction for a criminal offence. So section 11 is not dealing with the use of civil
actions by plaintiffs to initiate collateral attacks upon final decisions against them
which have been made by a criminal court of competent jurisdiction; and the public
policy that treats the use of civil actions for this purpose as an abuse of the process of
the court is not involved.
Section 11 makes the conviction prima facie evidence that the person convicted did
commit the offence of which he was found guilty; but does not make it conclusive
evidence; the defendant is permitted by the statute to prove the contrary if he can.
The section covers a wide variety of circumstances; the relevant conviction may be of
someone who has not been made a defendant to the civil action and the actual
defendant may have had no opportunity of determining what evidence should be
called on the occasion of the criminal trial; the conviction, particularly of a traffic
offence, may have been entered upon a plea of guilty accompanied by a written
explanation in mitigation; fresh evidence, not called on the occasion of his conviction,
may have been obtained by the defendant's insurers who were not responsible for
the conduct of his defence in the criminal trial, or may only have become available to
the defendant himself since the criminal trial. This wide variety of circumstances in
which section 11 may be applicable includes some in which justice would require
that no fetters should be imposed upon the means by which a defendant may rebut
the statutory presumption that a person committed the offence of which he has been
convicted by a court of competent jurisdiction. In particular I respectfully find
myself unable to agree with Lord Denning M.R. that the only way in which a
defendant can do so is by showing that the conviction was obtained by fraud or
collusion, or by adducing fresh evidence (which he could not have obtained by
reasonable diligence before) which is conclusive of his innocence. The burden of
proof of 'the contrary' that lies upon a defendant under section 11 is the ordinary
burden in a civil action: proof on a balance of probabilities; although in the face of a
conviction after a full hearing this is likely to be an uphill task.”
[29] Section 10 and its English equivalent have been the subject of judicial consideration
on a number of occasions since then. Courts have not discerned any threat to public
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19
confidence in the administration of justice arising from its operation. Paragraph 19 of the
Opinion of the Lord President in Wright is quoted above. Similarly, in Towers v Flaws and
another [2015] CSIH, at paragraph 28, the Lord Justice Clerk said:
“There is no question of challenging a criminal conviction. That conviction stands. If
the civil jury determine on the evidence before them that the defender has
demonstrated that he was not negligent, that will be a matter entirely for them.
There is no difficulty in this. The evidential basis of the conviction will remain
undisturbed and no problem of undermining public confidence or uncertainty will
arise.”
In Hall-Craggs and others v The Royal Highland Show and Agricultural Society of Scotland and
another [2016] CSOH 8 Lady Wolffe at paragraph 19 again emphasised a distinction between
the operation of section 10 and a challenge to the correctness of a conviction:
“… the convicted party may endeavour to show that they did not commit the offence
which is the subject-matter of the conviction. (That is not the same as showing that
they were wrongly convicted, and that is why, in my view, the Inner House in Towers
held as irrelevant averments which had that as their object.)”
Discussion
[30] I am satisfied that the present action does raise an issue that was determined
adversely to the pursuer in the criminal proceedings. He pleads that he suffered a vasovagal
attack, and that he suffered a brief period of loss of consciousness, and that this was brought
on by a sudden or rapid fall in blood pressure or heart rate. Loss of consciousness as a result
of a vasovagal attack was before the jury in the special defence. In order to succeed in the
present action, the pursuer will have to prove not only that he suffered a vasovagal attack
resulting from a fall in blood pressure, but also that it was caused by medication negligently
prescribed. No fall in heart rate was mentioned in the special defence, but Ms Sutherland
did not suggest that this was of any significance.
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20
[31] It seems to me that the jury must have rejected the proposition that the pursuer
suffered a vasovagal attack, and became unconscious, as a result of a fall in blood pressure.
On the terms of the special defence it is theoretically possible that jury could have been
satisfied that, or in reasonable doubt as to whether, the pursuer had a vasovagal attack, but
been satisfied beyond reasonable doubt that any such attack was self-induced or foreseeable.
There was, however, nothing in the pleadings to suggest that that would have been a live
issue on the evidence in the trial, and Ms Sutherland did not submit that it would have been.
Comparing the pursuer’s pleadings with the terms of the special defence rejected by the
jury, I conclude that the pursuer’s offer to prove the averments at page 15A-B and 15E-16A
runs counter to the basis on which he was convicted. It is therefore a collateral challenge.
I adopt the definition of collateral used by the Court of Appeal in Smith v Linskills: an attack
not made in the proceedings which gave rise to the decision which it is sought to impugn;
not, in other words, an attack made by way of appeal in the earlier proceedings themselves.
[32] If there is an abuse of process of a type prohibited by Scots law apparent from the
face of the pleadings or the procedural history of the action, it is in my opinion competent
for the court to deal with that by way of dismissal, in the absence of a rule of procedure
specifically dealing with it. That is clear from Tonner. I accept that summary dismissal of an
action is a power of last resort. The considerations mentioned in Grubb v Findlay are not of
direct application here, in the sense that the issue of abuse of process has been raised and
answered in the pleadings, and a debate with notice properly given that dismissal would be
sought on that basis. In Grubb the suggestion was that the Lord Ordinary ought to have
dismissed an action summarily during or at the end of the proof, and on an entirely different
basis.
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21
[33] It is apparent that the observations in Wright favouring the retention of immunity of
suit for advocates in criminal proceedings were influenced by the absence of procedural
mechanisms in Scottish civil procedure which could readily be used to strike out collateral
challenges to subsisting criminal convictions brought in actions for professional negligence
against advocates. Lord Osborne was of the view that the inherent power of the Court of
Session which he described as never having been defined or operated, was not comparable
with the powers to strike out described by Lord Hoffman in Hall. The objection was not so
much to the notion that there might be public policy objections to a pursuer raising issues
that bear on the soundness of a conviction in an action at his own instance, as to the absence
of a procedural mechanism for dealing with them. The Lord President appears also to have
been proceeding on the basis that challenging the conviction must be the sole or dominant
purpose of the action, and that it might be difficult to discern whether or not that was the
case. I approach the observations in Wright bearing in mind that the absence of a procedural
rule to deal with cases of abuse of process informed the approach of the Court, and also
bearing in mind the later decision in Tonner.
[34] I have no doubt that Scots law recognises and seeks to give effect to the policies
expressed in the maxims nemo debet bis vexari pro una et eadem causa and interest rei publicae ut
finis sit litium, referred to by Lord Hoffman in Hall at page 701A-C. These are, as Flaux LJ
explained in Kamoka, the interest of the individual in not being vexed twice in relation to the
same cause, and the public interest in the finality of litigation. The Lord President
recognised in Wright the public interest in avoiding the risk that public confidence in the
administration of criminal justice might be undermined by findings in a civil case brought
by the convicted person. He did, however, state in terms that Hunter had no direct
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22
application in Scotland, and proceed upon an understanding that the underlying purpose of
the litigation was of significance in the context of Hunter.
[35] What underlies the idea that a collateral challenge to a conviction is an abuse of
process is the public interest in preventing the relitigation of issues that have already been
tried. That interest is particularly powerful when the result of the earlier proceedings has
been a criminal conviction. Additional considerations apply. It may well cause a loss of
confidence in the administration of criminal justice if there is a public perception that there
are means available to a convicted person, at his own instance, to challenge a conviction
other than by appeal. Notwithstanding the reservations expressed in Wright, I am satisfied
that Scots law recognises that it is contrary to public policy to allow a civil action to proceed
in which the pursuer mounts a collateral challenge to his conviction. I am also satisfied
that this is not confined to cases in which that is the sole purpose of the action, for the
reasons set out in the authority cited in Amin at paragraph 13 and 14. The ill-effects of the
relitigation of the issue are in no way mitigated by the genuine intention of the pursuer to
obtain damages. It may be impossible to tell what the pursuer’s intention is.
[36] I am therefore satisfied I should dismiss the action as an abuse of process. I am
satisfied also that I have power to dismiss it on that basis. I am fortified in those
conclusions by the comments, obiter, of the Lord Justice Clerk (Gill), Lord Clarke and Lord
of their Lordships was of the view that the court had an inherent power to strike out a claim
as an abuse of process specifically in the context of a proliferation of litigations about
essentially the same issues. In Clarke v Fennoscandia Ltd 2008 SC(HL) 122 Lord Rodger, at
paragraph 35, expressed the view that a Court of Session action in which a pursuer mounted
a collateral attack on a decision of the Court of Appeal of England and Wales would not
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23
have a legitimate purpose. All of those comments were referred to with approval by an
delivering the opinion of the Court, at paragraph 7.
[37] I do not consider that the operation of section 10 of the 1968 Act assists the pursuer.
The doctrine of abuse of process operates separately from, but consistently with, the rules of
evidence provided in the 1968 Act, in the way described by Lord Diplock in Hunter. That
doctrine as explained in Hunter operates to prevent a person from pursuing an action other
than defamation proceedings in which there is a collateral challenge to a criminal conviction.
Some of the same public policy considerations that informed the enactment of section 12 and
its English equivalent also informed the decision in Hunter. The 1968 Act did not preclude
collateral challenges, other than in the context of defamation actions. It does not follow,
however, that such collateral challenges are permissible in other types of proceedings. It
does not follow from the potential to rebut the presumption raised by a conviction (section
10(1) and (2)) that a pursuer may bring an action at his own instance to that end. I accept
that there is some risk inherent in the operation of section 10 that the basis for a conviction
will be undermined. It is one that appears to have been accepted because of the potential
for liability to result from the operation of section 10(1). Parliament allowed for rebuttal in
circumstances where the civil proceedings had the potential to render the convicted person
(or someone else liable to make reparation for his acts or omissions and who had not been a
party to the criminal proceedings) liable to pay money, because that was additional to the
penal consequences of the conviction.
[38] In the context of section 10(2) it would be irrelevant for a defender to plead that his
representation at trial had been defective or that he had been wrongly convicted for any
other reason. It would, however, be relevant for him to seek to prove that he had not
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committed the acts libelled in the indictment, so far as that was relevant to whether he was
or was not negligent. That demonstrates that using section 10(2) involves no direct attack on
a conviction. A civil court cannot, by virtue of section 10(2), be asked directly to find that a
subsisting conviction is wrong: Towers; Hall-Cragg. A finding in fact that certain conduct
central to the conviction had not occurred, however, could cast doubt on the soundness of
the conviction, although it would not necessarily shake public confidence in the
administration of criminal justice. That is what the Lord President said in Wright at
paragraph 19.
[39] The only case of which I am aware in which a court has discussed the possibility that
a defender might invoke section 10(1) or an equivalent provision against a pursuer was in
Hurnam, at paragraph 41, where Lord Rodger said:
“41. This leads on to the second point. In England at common law a conviction
in a criminal court was of no evidential value in civil proceedings relating to the
same matter: Hollington v F Hewthorn & Co Ltd [1943] KB 587. In Gorpatur v
Kooshur 1951 MR 31, having rejected the French rule, the Supreme Court held
that the English law on this point applied in Mauritius. The law in England was
amended by the Civil Evidence Act 1968 so that, by section 11, a conviction is
now prima facie evidence that the person convicted did commit the offence of
which he was found guilty. No equivalent amendment has been made in Mauritius.
So the position remains that, in the present proceedings, for example, the
defendants could not introduce evidence of Mr Hurnam’s conviction as evidence
that he had committed the offence of which he was convicted. That would be of
some possible relevance in legitimate proceedings brought by Mr Hurnam against
Kailash and Soobash. Here, however, except in relation to the two later statements
of Soobash and the evidence of Mr Lowtoo, the issue raised by the State has
nothing to do with the availability or admissibility of evidence in relation to the
events in question. On the contrary, the contention is quite different: that the
Board’s duty is to strike out the action because its purpose is illegitimate and it
constitutes an abuse of process. The rule in Hollington v F Hewthorn & Co Ltd
does not affect that contention.”
[40] For the reasons set out above, I am not convinced that the provisions allowing
reliance on a conviction were intended to be invoked by defenders in the way discussed (at
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25
least hypothetically) by Lord Rodger. On his analysis also, however, it is plain that the
availability to the claimant, or the admissibility, of evidence to show that he has not
committed an offence does not prevent a court from regarding his action as an abuse of
process. That is consistent with the approach I have taken, which is that the law regarding
abuse of process operates separately from the rules of evidence provided in the statutes of
1968.
Disposal
[41] The plea advanced by the defender was one to the relevancy and specification of the
action. Whether an action which is an abuse of process is irrelevant was not discussed. A
case is irrelevant when, if the party were to succeed in proving all his averments, he would
nevertheless fail to make out his case. I do not think that a collateral challenge to a
conviction which is contrary to public policy renders an action irrelevant in that sense. It
may be that an action which does not have a legitimate purpose is incompetent: Clarke v
Fennoscandia, Lord Rodger, paragraph 35. As I have said, I am satisfied that it is within the
inherent power of the Court to dismiss an action as an abuse of process. That being so, I
consider that the absence of a plea in law specifically mentioning abuse of process does not
prevent me from dismissing the action on that basis. Where a point of this sort is to be
advanced by a party, that party should give notice of the point so it can be fully and
properly argued. That has been done in this case in the body of the pleadings and in the
note of arguments. I therefore dismiss the action on the basis that it is an abuse of process,
although I am not sustaining the defender’s first plea in law.