Devendranath Hurnam v Kailashing Bholah and Soobashsing Bholah (Mauritius)

Bringing civil proceedings to obtain findings inconsistent with a final criminal conviction, after a full opportunity to contest that conviction, is an abuse of process. The rule applies even where the claim is framed as an action for damages and relies on the civil standard of proof. Additional allegations do not avoid the rule where they are integral to the collateral attack. Fresh evidence should be placed before the criminal appellate court or in a procedure capable of reopening the conviction. A civil action is not a substitute. The Board also distinguished the admissibility of a conviction as evidence from the separate jurisdiction to strike out proceedings brought for an illegitimate purpose.

The appellant had been convicted of conspiring to fabricate an alibi for Soobash Bholah. His conviction was restored on appeal by the Privy Council in Director of Public Prosecutions of Mauritius v Hurnam [2007] UKPC 24, reported at [2007] 1 WLR 1582. He later brought civil proceedings against Kailashing and Soobashsing Bholah, claiming damages for allegedly false statements made to the police and at trial.

The District Court dismissed the claim on 4 November 2008, and the Supreme Court dismissed the appeal on 3 August 2009. The State intervened before the Board, arguing that the civil proceedings were an abuse of process because they constituted a collateral attack on the criminal conviction. The central issue was whether the claim should be struck out on that basis, including where it contained allegations extending beyond the criminal charge.

The appeal was dismissed and the action was struck out as an abuse of process.

1. In the principal judgment, Lord Rodger applied the rule in Hunter v Chief Constable of the West Midlands Police [1982] AC 529. Initiating proceedings in a competent court for the purpose of mounting a collateral attack on a final decision, after the claimant had a full opportunity to contest it, is abusive. The civil claim’s form as an action for damages did not alter that conclusion.
2. The action’s real purpose was to obtain civil findings inconsistent with the conviction. The defendants were not men of means, the damages claim had been reduced to one per cent of the alleged loss, and the proceedings were linked to attempts to rehabilitate the appellant’s reputation. The fact that the conviction had been reached beyond reasonable doubt, while the civil claim would be decided on the balance of probabilities, reinforced the impermissibility of the collateral attack.
3. The allegation that Kailashing had received Rs 25,000 was not severable in substance. It was bound up with the allegation concerning the fitness-centre alibi and formed part of the attempt to show that the conviction was wrongful. Fresh evidence directed to that issue should instead be placed before the criminal appellate court in a procedure permitting the conviction to be reopened. The evidence of Mr Lowtoo did not satisfy the rigorous fresh-evidence test applied in a collateral attack.
4. The Board made additional observations on Mauritian law. The French rule giving criminal findings decisive authority in related civil proceedings did not form part of Mauritian law. The English common-law rule concerning the evidential value of convictions remained applicable, since no equivalent of section 11 of the Civil Evidence Act 1968 had been enacted in Mauritius. That evidential issue was distinct from, and did not affect, the abuse-of-process basis for striking out the action.

Concurring reasoning

Lord Brown agreed with the result and added that, as against Soobashsing, the claim was also barred by absolute witness immunity. That immunity extended to evidence given at trial and to preliminary questioning and statements. The direct collateral challenge could not be permitted without imperilling the administration of justice.

The appellant and intervener were directed to make written submissions on costs within 28 days.

1. Privy Council: On 12 July 2010, the Board ordered that the civil action be struck out as an abuse of process. Written submissions on costs were directed within 28 days.
2. Supreme Court of Mauritius: On 3 August 2009, Domah and Angoh JJ dismissed the appellant’s appeal from the District Court.
3. District Court of Grand Port: On 4 November 2008, the District Magistrate dismissed the damages claim after finding that it had not been proved on the balance of probabilities.

The civil appeal arose against a criminal conviction which had been restored by the Privy Council in Director of Public Prosecutions of Mauritius v Hurnam [2007] UKPC 24; the Supreme Court later refused an application to reopen the criminal proceedings on 18 May 2007.