CXX V DXX [2012] EWHC 1535 (QB)
FACTS:-
The Defendant, a consultant physician had attempted to poison the Claimant, a medical secretary so as to procure a miscarriage. He was convicted and sentenced to six years in prison. The Claimant sued the Defendant for trespass to the person and harassment, and the Defendant pleaded in his Defence that the convictions were wrong.
The Claimant applied for summary judgment pursuant to CPR 24.2 and the Master struck out pursuant to CPR 3.4 the paragraphs of the defence, which contested the convictions. Permission to appeal was refused and so the Claimant appealed.
JUDGEMENT:-
Mr Justice Spencer said that the test for granting permission was whether the court considered that the appeal had a real prospect of success or that there was some other compelling reason why the appeal should be heard. The test for whether an appeal should be allowed was whether the decision of the Master was wrong, or unjust because of a serious procedural or other irregularity in the proceedings.
Two authorities had come to light in relation to this issue of summary judgment, in reliance of a conviction. The first was Brinks Ltd v Abu-Saleh [1995] 1 WLR 1478 where two of the persons convicted of being involved in the Brinks-Mat gold bullion robbery opposed an application for summary judgment. In that case the court referred to Section 11(2) of the Civil Evidence Act 1968, which reversed the burden of proof in a civil case, where the Defendant had been convicted of a crime against the Claimant. The court held that any attempt to re-litigate this issue was an abuse of process.
The second decision was J v Oyston [1999] 1 WLR 694 where the Defendant had been convicted of raping and indecently assaulting the Claimant. In the case, the court said that section 11 of the 1968 Act did not make the issue of whether the crime in question had taken place, conclusive. However there was no application for summary judgment in that case.
Phipson on Evidence (17th Edition) stated that the case of J v Oyston should be followed.
Spencer J said that there appeared to be no Court of Appeal authority, arising from a criminal trial, in which these conflicting first instance decisions had been considered, although there was a Court of Appeal decision McCauley v Vine [1999] 1 WLR 1977 where the Court of Appeal declined to uphold the granting of summary judgment in a case where the Defendant had been convicted of careless driving. The Court of Appeal did consider the case of Brinks but not that of J v Oyston.
Spencer J said that Section 11(2) allowed the Defendant to say that his conviction was wrong, but he still had to show that he had some realistic prospect of doing so. Following the decision of Lord Denning in Stupple v Royal Insurance Co. Ltd [1971] 1 QB 50, the conviction was a weighty piece of evidence in itself. The test to be applied was whether the claim or defence, as the case might be, had any realistic prospect of success. The Defendant had tried to point to inconsistencies in the evidence of the Claimant. Spencer J said that these inconsistencies had been considered by the Court of Appeal, but this ground of appeal was rejected. At first instance, the Master had also considered these inconsistencies, but it had not swayed his decision to grant summary judgment.
There was also an application on the part of the Claimant to the Criminal Case Review Commission. Spencer J said that this could not equated with a pending appeal. The possibility of a successful application, which might then result in a referral to the Court of Appeal was too speculative.
Therefore the Master was correct to grant summary judgment. There was no real prospect of success.
FACTS:-
The Defendant, a consultant physician had attempted to poison the Claimant, a medical secretary so as to procure a miscarriage. He was convicted and sentenced to six years in prison. The Claimant sued the Defendant for trespass to the person and harassment, and the Defendant pleaded in his Defence that the convictions were wrong.
The Claimant applied for summary judgment pursuant to CPR 24.2 and the Master struck out pursuant to CPR 3.4 the paragraphs of the defence, which contested the convictions. Permission to appeal was refused and so the Claimant appealed.
JUDGEMENT:-
Mr Justice Spencer said that the test for granting permission was whether the court considered that the appeal had a real prospect of success or that there was some other compelling reason why the appeal should be heard. The test for whether an appeal should be allowed was whether the decision of the Master was wrong, or unjust because of a serious procedural or other irregularity in the proceedings.
Two authorities had come to light in relation to this issue of summary judgment, in reliance of a conviction. The first was Brinks Ltd v Abu-Saleh [1995] 1 WLR 1478 where two of the persons convicted of being involved in the Brinks-Mat gold bullion robbery opposed an application for summary judgment. In that case the court referred to Section 11(2) of the Civil Evidence Act 1968, which reversed the burden of proof in a civil case, where the Defendant had been convicted of a crime against the Claimant. The court held that any attempt to re-litigate this issue was an abuse of process.
The second decision was J v Oyston [1999] 1 WLR 694 where the Defendant had been convicted of raping and indecently assaulting the Claimant. In the case, the court said that section 11 of the 1968 Act did not make the issue of whether the crime in question had taken place, conclusive. However there was no application for summary judgment in that case.
Phipson on Evidence (17th Edition) stated that the case of J v Oyston should be followed.
Spencer J said that there appeared to be no Court of Appeal authority, arising from a criminal trial, in which these conflicting first instance decisions had been considered, although there was a Court of Appeal decision McCauley v Vine [1999] 1 WLR 1977 where the Court of Appeal declined to uphold the granting of summary judgment in a case where the Defendant had been convicted of careless driving. The Court of Appeal did consider the case of Brinks but not that of J v Oyston.
Spencer J said that Section 11(2) allowed the Defendant to say that his conviction was wrong, but he still had to show that he had some realistic prospect of doing so. Following the decision of Lord Denning in Stupple v Royal Insurance Co. Ltd [1971] 1 QB 50, the conviction was a weighty piece of evidence in itself. The test to be applied was whether the claim or defence, as the case might be, had any realistic prospect of success. The Defendant had tried to point to inconsistencies in the evidence of the Claimant. Spencer J said that these inconsistencies had been considered by the Court of Appeal, but this ground of appeal was rejected. At first instance, the Master had also considered these inconsistencies, but it had not swayed his decision to grant summary judgment.
There was also an application on the part of the Claimant to the Criminal Case Review Commission. Spencer J said that this could not equated with a pending appeal. The possibility of a successful application, which might then result in a referral to the Court of Appeal was too speculative.
Therefore the Master was correct to grant summary judgment. There was no real prospect of success.