RECLAIMING MOTION BY VINCENT MARTIN FRIEL AGAINST DR IAIN BROWN [2020] ScotCS CSIH_7 (20 February 2020)

RECLAIMING MOTION BY VINCENT MARTIN FRIEL AGAINST DR IAIN BROWN [2020] ScotCS CSIH_7 (20 February 2020)

A civil action by a convicted person seeking damages on the basis of facts contrary to those established in the criminal conviction constitutes a collateral attack and is barred by public policy; section 10(2) does not permit such a challenge. The action was therefore irrelevant and must be dismissed.

Citation
[2020] ScotCS CSIH_7
Parties
Pursuer and Reclaimer: Vincent Martin Friel; Defender and Respondent: Dr Iain Brown
Jurisdiction
Scotland
Judgment Date
20 February 2020
Procedural Posture
Civil Reclaiming Motion (appeal) / Appeal Against Dismissal After Procedure Roll Debate
Outcome
Reclaiming motion refused; action dismissed.
Legal Topics
Abuse of Process, Collateral Attack on Conviction, Effect of Criminal Conviction in Civil Proceedings, Public Policy, Section 10 Law Reform (miscellaneous Provisions) (scotland) Act 1968
Civil Procedure Medical Negligence Evidence Abuse of Process Collateral Attack on Conviction Effect of Criminal Conviction in Civil Proceedings Public Policy Section 10 Law Reform (miscellaneous Provisions) (scotland) Act 1968

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Parties

Vincent Martin Friel

Pursuer and Reclaimer

Dr Iain Brown

Defender and Respondent

Procedural Posture

Civil Reclaiming Motion (appeal) / Appeal Against Dismissal After Procedure Roll Debate

Legal Issues

  1. 1 Whether the civil action for damages constituted an abuse of process as a collateral attack on a criminal conviction
  2. 2 Whether section 10(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 permits rebuttal of the presumption arising from a conviction in these circumstances

Ratio Decidendi

A civil action by a convicted person seeking damages on the basis of facts contrary to those established in the criminal conviction constitutes a collateral attack and is barred by public policy; section 10(2) does not permit such a challenge. The action was therefore irrelevant and must be dismissed.

Court Disposition

Reclaiming motion refused; action dismissed.

Orders

  • Recall the interlocutor of the Lord Ordinary dated 22 March 2019.
  • Sustain the defender’s first plea-in-law.