Summary decree granted on basis of conviction

Sheriff Mackie’s decision in AB v CD [2017] SC EDIN 74 (ASPIC, 2 November 2017n) is a useful reminder of the provisions of s 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 in terms of which, where a party in a civil action has been convicted of an offence, he/she will be presumed to have committed that offence unless the contrary is proved. This reverses the onus of proof onto the convicted party and, unless that onus is discharged, the subject matter of the conviction will be taken to have been proved in the civil proceedings.

Following an assault, the pursuer raised an action for damages against the man who had been convicted of the assault. Summary decree was sought on the basis that the defence had no real prospects of success, as the defender had been convicted of the assault and the facts in the criminal case were essentially identical to those pled in the civil action.

The defender had pled not guilty at the criminal trial but had been convicted. In the civil action, he admitted that there had been a conviction, but averred that he had acted in self-defence. The defender had not given evidence at the trial and had not put forward a defence of self-defence. In mitigation, he had relied on provocation and his remorse and he had also offered to pay compensation to the pursuer. Having considered the pleadings and other material presented by the defender, Sheriff Mackie held that the stated defence held no real prospects of success and no compelling reason why summary decree should not be granted had been demonstrated. On that basis, she granted the pursuer’s motion.