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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> RECLAIMING MOTION BY VINCENT MARTIN FRIEL AGAINST DR IAIN BROWN [2020] ScotCS CSIH_7 (20 February 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_7.html
Cite as: 2020 GWD 7-102, 2020 SC 273, 2020 SCLR 723, [2020] CSIH 7, [2020] ScotCS CSIH_7, 2020 SLT 303, 2020 Rep LR 89
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Menzies
Lord Drummond Young
[2020] CSIH 7
A218/17
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Reclaiming Motion by
VINCENT MARTIN FRIEL
against
Pursuer and Reclaimer
DR IAIN BROWN
Defender and Respondent
______________
Pursuer and Reclaimer: Sutherland QC, Waugh; Lefevres
Defender and Respondent: McGregor; BTO LLP
20 February 2020
Introduction
[1] This is a reclaiming motion by the pursuer against the Lord Ordinary’s interlocutor
of 22 March 2019 which dismissed his action for damages against the defender. The
defender was the pursuer’s General Medical Practitioner. The action is based upon his
alleged negligent prescription of a drug. The pursuer avers that the drug caused him to lose
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consciousness while driving. This resulted in a collision on a pedestrian crossing which left
one person dead and another seriously injured.
[2] The interlocutor, which was pronounced after a debate on the Procedure Roll, states
that the dismissal was on the basis that the action was “an abuse of process”. The reasoning
behind that was that the pursuer had been convicted of causing death and serious injury by
dangerous driving under respectively sections 1 and 1A of the Road Traffic Act 1988. The
jury’s verdict involved a rejection of the pursuer’s special defence of automatism; viz. that he
had lost consciousness prior to the accident. The Lord Ordinary held that the action
constituted a collateral attack on the pursuer’s conviction. The pursuer unsuccessfully
argued that section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968
entitled him to rebut what was only a presumption that he committed the offence.
Legislation
[3] Section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968
provides:
“10.— Convictions as evidence in civil proceedings.
(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;
….
(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…”.
There is an equivalent provision in England and Wales (Civil Evidence Act 1968 s 11).
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The Pursuer’s Averments
[4] In 2002, the pursuer was receiving treatment for mild hypertension (high blood
pressure). From 2004, he was referred to a consultant cardiologist and prescribed a single
drug, namely Losartan. His condition was well controlled until 2008, when he developed a
pulmonary embolus. He was prescribed sundry additional drugs before, following a review
by the cardiologist in August 2012, returning to the “mono therapy” of Losartan.
[5] On 14 November 2013, the pursuer attended the defender’s practice, who was his
longstanding GP, complaining of headaches during sexual intercourse and light headedness
whilst exercising. He was having difficulty in remembering names (aged 42). He had been
stressed at the consultation, because he had been late. His blood pressure was slightly
elevated but, after a brief period of rest, it returned almost to normal. The defender
prescribed a second anti-hypertensive drug, namely Tildiem. Tildiem is one of a group of
medicines known as “calcium channel blockers”. It has an effect on blood pressure, but in a
different way from Losartan. It can increase the effect of certain other medications which
are used to treat high blood pressure and can cause light-headedness. A number of common
side effects, including headaches and dizziness, have been noticed. Combining the drugs is
likely to have an additive affect in reducing blood pressure to a severe degree. Concurrent
use can increase the risk of hypotension (low blood pressure).
[6] The pursuer had an anxious personality, particularly in relation to his health. He
had been taking Viagra and Lipitor (an anti-cholesterol drug). The pursuer deferred taking
the Tildiem until after he had completed a programme of physical exercise. He began taking
it on 18 December 2013. It would not have had an immediate effect.
[7] On 18 January 2014, the pursuer had run for several kilometres on his home
treadmill. He had finished running around 2.00pm. He went out in his car. At 4:40pm he
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was stationary behind two other vehicles at a pedestrian crossing, which was controlled by
traffic lights. When the lights were at green, the vehicle in front moved off. The pursuer
avers that he then suffered a vasovagal attack, or syncope, and blacked out. This resulted
from a rapid fall in blood pressure and heart rate, which was caused by the addition of the
Tildiem to his existing medication. The pursuer’s car, which had an automatic transmission,
moved forwards at about 4 mph, through a red light and struck the pedestrians.
[8] On 17 February 2016, the pursuer was convicted of causing death and serious injury
in contravention of sections 1 and 1A of the Road Traffic Act 1988. He had lodged a special
defence of automatism. This read that, at the time of the accident, the pursuer:
“… 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 … resulted in
total alienation of reason amounting to total loss of control of actions.”
The trial judge’s report in the subsequent unsuccessful appeal stated that one of the issues at
the trial had been whether the Crown had proved that the pursuer had been driving in the
legal sense at the relevant time, in view of the special defence of automatism. The judge
observed that the question of whether the appellant had suffered an attack of syncope (ie
blacked out) was the main issue. He directed the jury that, before they could convict, they
had to be satisfied beyond reasonable doubt that the Crown had proved that the pursuer
had not suffered such an attack. The judge commented that the jury had clearly been
satisfied that the pursuer had not blacked out. It is admitted by the pursuer that the plea of
automatism was rejected by the jury.
[9] The pursuer’s claim against the defender for £500,000 in damages includes the
psychological effects of the accident and the stress of the trial and conviction. It includes the
cost of his defence, which he required (for unspecified reasons) to fund himself. He was
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sentenced to 3 years imprisonment on 16 March 2016 and was disqualified from driving for
5 years. As a result, he was unable to see his son. The pursuer had been a successful
businessman and sole trader. He was a self-employed landlord and property developer. He
had lost his business and his income.
The Lord Ordinary’s decision
[10] The defender had argued that the action was an “abuse of process”, standing the
criminal conviction. The Lord Ordinary observed that, although there was no Scottish
authority for the proposition that “a collateral attack in civil proceedings on a conviction is
an abuse of process”, there was in England and Wales, and Mauritius (Hunter v Chief
SC 404 had cast doubt on the procedural mechanism in Scotland for dismissing a claim on
abuse of process grounds, but the law relating to the inherent power of the court was now
further developed (Tonner v Reiach & Hall 2008 SC 1). It was well established that the court
[11] The pursuer’s action raised an issue which had been determined against him in
criminal proceedings; that he had lost consciousness at the time of the accident. The
pursuer’s averments ran contrary to the basis for the conviction. The action involved a
collateral challenge to it (Smith v Linskills [1996] 1 WLR 763, at 769). Scots law recognised the
maxims nemo debet bis vexari pro una et eadem causa (no one should be tried twice in respect of
the same matter) and interest reipublicae ut sit finis litium (the public interest in the finality of
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of process because of the public interest in preventing the re-litigation of issues which had
already been tried. It could cause a loss of confidence in the administration of criminal
justice, if the public perception was that there were means to challenge a conviction other
than by appeal. The public policy objection was not limited to cases in which the sole
purpose of the action was a collateral challenge (Amin v Director General of the Security Service
abuse of process by way of summary dismissal (Tonner v Reiach & Hall (supra); Clarke v
was a power of last resort.
[12] In proposing reform in 1967, the Law Reform Committee (Fifteenth report) had
expressed the view that Hollington v F Hewthorn and Co [1943] KB 587 had been wrongly
decided (see Goody v Odhams Press [1967] 1 QB 333, and Hunter v Chief Constable of the West
Midlands Police (supra)). The Committee had not envisaged reliance on a conviction, other
than by someone who was pursuing the convicted person when seeking to establish civil
liability. It had not considered the possibility of collateral attacks on convictions by persons
who were initiating actions, other than in the context of defamation (cf the 1968 Act, s 12;
Civil Evidence Act 1968, s 13). Section 10(2) of the 1968 Act did not assist the pursuer.
Parliament had allowed for a rebuttal of the basis for a conviction where the convicted
person, or someone else liable to make reparation for his acts or omissions who had not been
a party to the criminal proceedings, could be liable to pay money. That was because that
liability was additional to the penal consequences of the conviction. The civil courts could
not, by virtue of section 10(2), be asked directly to find that a subsisting conviction was
of Scotland 2016 SLT 311).
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Submissions
Pursuer
[13] The pursuer maintained that the action was not a collateral attack on the conviction.
There was no identity of issues. Such identity only arose when the conviction had a clear
resemblance to the issues raised in the civil action (Cronie v Messenger and Kelly (unreported,
C.J. Macaulay QC, 25 June 2004). There had been no issue at the trial about the negligent
prescription of medicine. If the argument that the pursuer had lost consciousness had been
accepted by the jury, this would have extinguished any criminal responsibility. There was
no question of challenging the conviction. It stood until such time as the pursuer was
successful in his application to the Scottish Criminal Cases Review Commission and any
subsequent reference to the High Court. If he was successful in this action, the evidential
basis of his conviction would remain undisturbed. Public confidence in the courts would
not be undermined (Towers v Flaws (supra)). There was limited authority on what
constituted an abuse of process in Scotland. The thrust of the references to it indicated a
requirement for intentional action which was carried out in bad faith, fraudulently or for an
illegitimate purpose (Levison v Jewish Chronicle 1924 SLT 755; Shetland Sea Farms v
[14] If there was an identity of issues, section 10 of the 1968 Act was engaged. The action
could not be an abuse of process, when section 10(2) permitted the pursuer to rebut the
presumption arising from the conviction (Towers v Flaws (supra); Hall-Craggs v Royal
Highland and Agricultural Society of Scotland (supra at para [19]); Walker and Walker, Evidence
(4th ed) at para 11.5.3). The reason for the rule in Hollington v F Hewthorn and Co (supra), that
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evidence of a criminal conviction was inadmissible in a civil trial, was that findings of fact
by one decision maker should not bind a subsequent decision maker who may be
considering different evidence. Decisions of the court were not infallible. That is why the
Law Reform Committee had not recommended that a conviction should be conclusive proof.
The recommendation was that a conviction should be admissible in subsequent civil
proceeding, with the effect that the onus of proof be reversed.
[15] It was accepted that the pursuer was not raising the action with the sole or dominant
purpose of attacking his conviction. He was genuinely seeking to recover damages. The
issue of law between the parties was whether the conviction was relevant to the civil action
and whether the statute permitted the pursuer to seek to rebut the presumption created by
the conviction.
Defender
Abuse of Process
[16] The Court had an inherent power to dismiss an action where there was an abuse of
process. The action was a collateral challenge to the pursuer’s conviction; the jury having
rejected the special defence of automatism arising from a loss of consciousness. The pursuer
sought to establish that he had been wrongly convicted, in that he had suffered a vasovagal
attack, or syncope, as a result of the prescription of Tildiem. The action ran contrary to the
public interest in preventing re-litigation of the same issues (Towers v Flaws (supra); Tonner v
Reiach & Hall (supra); Wright v Farrell Paton (supra); Clarke v Fennoscandia (No 3) (supra);
Hunter v Chief Constable of the West Midlands Police (supra). Section 10 of the 1968 Act
permitted the rebuttal of a presumption raised by a criminal conviction. It was not a
statutory vehicle for mounting a collateral challenge to a subsisting criminal conviction. It
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could not have been Parliament’s intention to permit a pursuer to rely on a conviction,
under section 10(1), with a view to rebutting it under section 10(2).
Decision
[17] The action is not an abuse of process. It should not have been dismissed on that
ground. The idea that an action could be summarily dismissed, on the basis of an abuse of
process in advance of a decision on the Procedure Roll or before a proof or jury trial, arose
from the Extra Division’s decision in Tonner v Reiach and Hall 2008 SC 1. The focus in Tonner
was delay, as it was also in Hepburn v Royal Alexandria Hospital 2011 SC 20 and is now in
RCS 21A. It is an accepted part of Court of Session practice that, for example, where a fair
trial is not possible, the court, as a last resort, can use this draconian power (Grubb v Finlay
2018 SLT 463, LP (Carloway), delivering the opinion of the court, at para [34]).
[18] This case does not involve summary dismissal. The action progressed in the normal
fashion to a Procedure Roll on the defender’s first plea-in-law to the relevancy of the
pursuer’s averments (the second plea on the consequences of a person’s illegal conduct
having ultimately been reserved until after proof). The issue is one of relevancy, viz: can the
pursuer succeed after proof in a case against the defender, for damages in respect of the
negligent prescription of a drug, when a jury in the High Court has found it proved beyond
reasonable doubt that the damages averred were not caused by the effects of the drug, but
by the pursuer’s own (conscious) dangerous driving?
the court followed Grahame v Secretary of State for Scotland 1951 SC 368 (LP (Cooper) at 387)
and explained (at para [27]) that the principle behind the plea of res judicata was:
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“based upon considerations of public policy, equity and common sense, which will
not tolerate that the same issue should be litigated repeatedly between the same
parties on substantially the same basis”.
As in that case, the parties in this case are not the same and that plea may not be available as
such. Nevertheless, the public policy, equity and common sense considerations are the same
when a jury in a criminal trial has found a particular fact proved beyond reasonable doubt
and the convicted person seeks to challenge that fact in a civil process which involves a
lesser standard of proof.
[20] The public policy considerations were explored, again in a different, but this time
said (at para [17]) that:
“There is ... 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.”
[21] This policy had earlier been considered by the House of Lords in Hunter v Chief
principle was used to prevent the use of a civil action to initiate a collateral attack on a
decision of a criminal court as a matter of public policy. The policy arose again in Arthur JS
immunity of advocates. It was made clear that it was contrary to public policy to permit a
collateral challenge in civil proceedings to a criminal conviction. If a convicted person
wished to challenge a conviction he must first do so by way of appeal (see Lord Steyn at 679;
Lord Browne-Wilkinson at 684-5; Lord Hoffmann at 706; and Lord Hutton at 730).
[22] The public policy considerations are clear. There ought not to be two conflicting
court decisions: a High Court jury determination that finds it proved beyond reasonable
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doubt that the drug, which the defender had prescribed, did not cause the pursuer to lose
consciousness; and a Court of Session finding in an action raised by the convicted person
that, on the balance of probability, it did. It is different if there has, for example, been an
acquittal and a pursuer seeks to prove on a balance of probability that the defender has
committed the offence. A finding to that effect would not be inconsistent with the
conviction.
[23] It is also different when the convicted person is the defender. In that event, for the
reasons explored by Lord Diplock in Hunter v Chief Constable (supra at 544) relative to the
equivalent English statute, section 10 of the Law Reform (Miscellaneous Provisions)
(Scotland) Act 1968 will apply. That section does not permit a convicted pursuer to make
reference to his conviction, and then to rely upon its existence for his damages claim, with a
view to using section 10(2) to rebut the presumption that the conviction was sound. Such a
course would conflict with the public policy considerations already explored.
[24] For these reasons, although the reclaiming motion is in substance refused, the court
will recall the interlocutor of the Lord Ordinary dated 22 March 2019, sustain the defender’s
first plea-in-law and dismiss the action.