Wednesday, January 6th, 2016

Relying on Criminal Convictions in Civil Proceedings

Everyone dealing with civil litigation knows that section 10(1) of the Law Reform (Miscellaneous Proceedings)(Sc) Act 1968 allows a party to rely on a criminal conviction. There are, however, few cases about that provision and even fewer about s.10(2)(a) which allows a person convicted to offer to prove he did not commit the offence which the other party relies on.

The Inner House considered the section earlier this year. The decision has not yet been made public pending a forthcoming civil jury trial. More recently, Lady Wolffe considered the section in the context of a motion for summary decree. In Hall-Craggs v RHASS and SEP Ltd, the pursuers sought summary decree in a fatal case after the first defender was convicted of a breach of section 3 of the Health and Safety at Work etc Act 1974. Although the pursuers did not plead the conviction, they argued that the court could take account of it in the motion for summary decree. The first defender resisted the motion on two grounds: (1) there was no coincidence between the offence and the civil action (which was based on common law/breach of the Occupiers' Liability (Sc) Act 1960), and (2) the first defender offered to prove that it did not commit the offence.

In an ex tempore decision, Lady Wolffe sustained both the arguments made by the first defender, and declined to grant summary decree. It is unfortunate that no written decision will be issued on what is a relatively unusual, but important, matter. Decisions in the Outer House are now, apparently, to be given ex tempore unless there is some reason why a written decision is necessary.

The Opinion of the Inner House should, however, be published once the jury trial is concluded.

Kay Springham of Compass Chambers acted for the first defender in the case decided by Lady Wolffe, and for the second defender in the case decided by the Inner House.
UPDATE - Lady Wolffe’s Note is now on Scottish Courts website here

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