14 January 2016

To decree, or not to decree, that is…or was…the question recently answered by the Court of Session when ruling on a motion for summary decree brought by Pursuers in a fatal case in which the Defenders had previously been found guilty of a criminal offence related to the fatality.

Section 10(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 permits a party in civil proceedings to admit as evidence the fact that another party has been convicted of a criminal offence. Although criminal convictions are not automatically binding upon a civil court, where a person is proved to have been convicted of an offence, the Act has the effect that they shall be taken to have committed the offence unless the contrary is proved. Section 10(2) of the Act allows the convicted person the opportunity to prove that he did not commit the offence of which he was convicted.

bto recently represented the first defenders in the case of Jonathan Hall-Craggs & others v The Royal Highland Show & Agricultural Society Of Scotland and SEP Ltd where this very point was discussed. The pursuers moved the court to grant summary decree in a fatal claim on the basis that the first defenders had been convicted in the criminal courts for a single breach of the Health & Safety at Work Act 1974. Whilst the pursuers had not pled the conviction, they argued that the Court should still take account of it when considering the motion for summary decree.

The first defenders opposed the motion on two grounds. The first being there was no coincidence between the conviction and liability in the civil action. There was a different onus for the purposes of the criminal case and a different test to be applied i.e. one of reasonable practicability as opposed to reasonable foreseeability. Secondly, the first defenders offered to prove that they did not commit the offence that they were convicted of as entitled to do by utilising s10(2).

The case called before Lady Wolffe who refused the pursuers’ motion. It was held that the test for summary decree is a high one. The mere fact of a conviction does not enable the pursuers to succeed by reason of that on its own. Despite the failure of the pursuers to plead the criminal conviction under s10(1), Lady Wolffe acknowledged the first defender’s offer to prove that the offence was not committed. Whilst s10(1) has the effect that a conviction is taken as proved, section 10(2) provides an accompanying right to the convicted person to show that they did not commit the offence of which they have been convicted. Limiting the scope of what might be permissible under s10(2), as was argued by the pursuers, would bring an inherent unfairness to the convicted party. It was also accepted that the first defenders had raised certain issues in their pleadings which, if proved, would afford them a complete defence to the action.

This case and others of its type highlights the importance of pleading a full and proper defence, particularly where there is a criminal conviction, to allow motions for summary decree (if made) to be successfully opposed and to further provide a basis upon which to challenge the criminal conviction in evidence. Where defenders have submitted “dilatory defences” a motion for summary decree will not easily be opposed, regardless of whether they intend to challenge a criminal conviction or not.

Lady Wolffe’s note can be found here:

http://www.scotcourts.gov.uk/search-judgments/judgment?id=de9001a7-8980-69d2-b500-ff0000d74aa7

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