FRIEL, VINCENT FRIEL AGAINST DR IAN BROWN [2019] ScotCS CSOH_30 (22 March 2019)

FRIEL, VINCENT FRIEL AGAINST DR IAN BROWN [2019] ScotCS CSOH_30 (22 March 2019)

A civil action by a convicted person that requires proof of facts contrary to the basis of the conviction constitutes a collateral challenge and is an abuse of process. The court has inherent power to dismiss such actions, and section 10(2) does not entitle a pursuer to mount a collateral attack on his own conviction.

Citation
[2019] ScotCS CSOH_30
Parties
Pursuer: Vincent Friel; Defender: Dr Ian Brown
Jurisdiction
Scotland
Judgment Date
22 March 2019
Procedural Posture
Civil Action for Reparation (damages) / Outer House, Court of Session, Scotland – Opinion and Final Disposal
Outcome
Action dismissed as abuse of process
Legal Topics
Abuse of Process, Collateral Attack on Conviction, Section 10 Law Reform (miscellaneous Provisions) (scotland) Act 1968, Automatism Defence, Professional Negligence
Civil Procedure Medical Negligence Evidence Abuse of Process Collateral Attack on Conviction Section 10 Law Reform (miscellaneous Provisions) (scotland) Act 1968 Automatism Defence Professional Negligence

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Parties

Vincent Friel

Pursuer

Dr Ian Brown

Defender

Procedural Posture

Civil Action for Reparation (damages) / Outer House, Court of Session, Scotland – Opinion and Final Disposal

Legal Issues

  1. 1 Whether the pursuer's civil action constitutes an abuse of process by mounting a collateral attack on a criminal conviction
  2. 2 Whether section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 entitles the pursuer to rebut the presumption of guilt in civil proceedings
  3. 3 Whether the court has inherent power to dismiss an action as an abuse of process

Ratio Decidendi

A civil action by a convicted person that requires proof of facts contrary to the basis of the conviction constitutes a collateral challenge and is an abuse of process. The court has inherent power to dismiss such actions, and section 10(2) does not entitle a pursuer to mount a collateral attack on his own conviction.

Court Disposition

Action dismissed as abuse of process

Orders

  • Action dismissed
  • No order sustaining defender’s first plea in law