CXX v DXX

A criminal conviction is admissible in civil proceedings, but it is not automatically conclusive. A defendant may challenge the conviction under section 11(2) of the Civil Evidence Act 1968, although the challenge may still be abusive depending on the circumstances.

Where the conviction followed a contested trial and an unsuccessful criminal appeal, it is weighty evidence. Summary judgment may be granted if, assessing the evidence as a whole, the defendant has no realistic prospect of proving that the conviction was wrong. A pending application to the Criminal Cases Review Commission is not equivalent to a pending appeal and does not prevent summary judgment.

The defendant appealed from Master Roberts’s order striking out parts of his defence as an abuse of process, granting summary judgment for the claimant, and ordering interim payments. The claim concerned damages for trespass to the person, harassment, psychiatric injury and consequential loss arising from the defendant’s criminal convictions for attempting to administer poison to the claimant with intent to procure a miscarriage.

The defendant sought to contest the convictions in the civil proceedings, relying principally on an alleged inconsistency between the claimant’s criminal evidence and the particulars of claim. He had also applied to the Criminal Cases Review Commission. The issues were whether challenging the convictions was abusive and whether the defendant had any real prospect of successfully defending the claim.

1. Abuse of process. Section 11(2) of the Civil Evidence Act 1968 gave the defendant a right to seek to prove that the convictions were wrong. It could not automatically be abusive to attempt what the statute permitted. Whether the challenge was abusive depended on the circumstances. The defendant was not shown to be acting merely to vex the claimant or prolong the proceedings. The relevant defence should therefore not have been struck out solely as an abuse of process.
2. Summary judgment. That conclusion did not remove the ordinary requirement under CPR 24.2 that the defence have a real prospect of success. A conviction is admissible evidence and may carry substantial weight in itself. The court preferred the approach that the conviction was weighty evidence, particularly where it followed a fully contested trial and had been upheld on appeal.
3. The alleged pleading inconsistency did not create a realistic prospect of proving that the convictions were wrong. The Master was entitled to assess the evidence in the round, including the claimant’s explanation, the independent evidence, and the Court of Appeal’s description of the criminal case as formidable. The defendant’s other proposed challenges had already been considered and rejected on the criminal appeal. The Master was therefore correct to grant summary judgment.
4. The pending CCRC application was speculative and could not be equated with a pending appeal. It did not justify withholding judgment. The interim payment order was permissible, subject to the usual possibility of repayment under CPR 25.8.
5. Although the defendant succeeded on the abuse-of-process reasoning, the issues were intertwined and the claimant had obtained all the substantive relief sought. The claimant was therefore awarded her costs in full, both before the Master and on the appeal.

• High Court (Queen’s Bench Division) — appeal from Master Roberts’ order. The court held that the defence should not have been struck out solely as an abuse of process, but upheld summary judgment and the striking out as consequential. Permission to appeal was refused.