KYLE MOIR AGAINST JOHN JAMES FORDYCE LYNDALE MEMSIE AND ANOTHER

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 SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH

 

[2017] SC EDIN 16

 

PN332/16

NOTE BY OF SHERIFF KATHRINE EC MACKIE

 

In the cause

 

KYLE MOIR 38 Dean Terrace Lossiemouth Moray IV31 6LL

Pursuer

 

Against

 

JOHN JAMES FORDYCE LYNDALE MEMSIE Aberdeenshire Fraserburgh AB43 7AW

Defender

 

KICHAM CHERIF COLLINBRAE St Gerardine’s Road Lossiemouth IV31 6RA

Third Party

 

Pursuer:   Pitts;  Digby Brown, Solicitors, Edinburgh

Defender:   Harrison;  Flexlaw, Solicitors, Edinburgh

Third Party:  Brotherhood;  BLM Solicitors, Glasgow

 

 

EDINBURGH MARCH 2017

The Sheriff having resumed consideration of the pursuer’s opposed motion number 7/9 of process, grants same, finds that the pursuer sustained loss injury and damage as a result of the fault of the defender and decerns; reserves all questions of expenses meantime; assigns 23 March 2017 at 9:30am within the Sheriff Court House 27 Chambers Street Edinburgh as a hearing thereon and on the pursuer’s opposed motion number 7/8 of process.

 

NOTE

17.2.    (1)        Subject to paragraphs (2) to (4), a party to an action may, at any time after defences have been lodged, apply by motion for summary decree in accordance with rule 15.1(1)(b) (lodging of motions) or rule 15A.7 (lodging unopposed motions by email) or rule 15A.8 (lodging opposed motions by email) as the case may be.

(2)        An application may only be made on the grounds that—

(a)        an opposing party’s case (or any part of it) has no real prospect of success; and

(b)        there exists no other compelling reason why summary decree should not be granted at that stage.

(3)        The party enrolling the motion may request the sheriff—

(a)        to grant decree in terms of all or any of the craves of the initial writ or counterclaim;

(b)        to dismiss a cause or to absolve any party from any crave directed against him or her;

(c)        to pronounce an interlocutor sustaining or repelling any plea-in-law; or

(d)       to dispose of the whole or part of the subject-matter of the cause.

(4)        The sheriff may—

(a)        grant the motion in whole or in part, if satisfied that the conditions in subparagraph (2) are met,

(b)        ordain any party, or a partner, director, officer or office-bearer of any party—

(i)         to produce any relevant document or article; or

(ii)        to lodge an affidavit in support of any assertion of fact made in the pleadings or at the hearing of the motion.

(5)        Notwithstanding the refusal of all or part of a motion for summary decree, a subsequent motion may be made where there has been a change in circumstances.

 

Section 10(2) of the Law Reform (Miscellaneous Provisions) Scotland Act 1968 provides:

“In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or of a service offence—

(a) he shall be taken to have committed that offence unless the contrary is proved, and

 

(b) without prejudice to the reception of any other admissible evidence for the purposes of identifying the facts which constituted that offence, the contents of any document which is admissible as evidence of the conviction, and the contents of the complaint, information, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.”

 

Introduction

• [1]This action for damages for personal injuries proceeds under Chapter 36 of the Ordinary Cause Rules.  The case called on 20 February 2017 in respect of two motions, 7/8 and 7/9 of process, both of which were opposed.  The motion with which this Note is principally concerned, 7/9, was lodged on behalf of the pursuer and reads:-

  “In respect that the defender does not disclose a proper defence to the action in the closed (sic) record, to grant summary decree against the defender with the proof/jury trial restricted to quantum and liability of the third party to the defender in terms of OCR 17.2.”

   

• [2]The motion was opposed on behalf of the defender.

   

  Pursuer’s Submissions

• [3]Mr Pitts explained that the action arose from an incident at Pino Pizza Shop, Queen Street, Lossiemouth on 6 April 2014.  Following the incident the defender was charged, inter alia, on Indictment, with culpably and recklessly punching through the glass window of the door of the premises with a total disregard for the consequences whereby glass struck the pursuer on the face and lodged in his eye whereby he was seriously injured and suffered permanent impairment to his sight.  On 26 March 2015 the defender pled guilty to that charge.  Copy Indictment and copy extract conviction are produced and form numbers 5/2 and 5/3 of process.
• [4]As a result of the actions and fault of the defender the pursuer suffered loss, injury and damage.  The averments of fact and law for the pursuer are set out in statements 4 and 5 of the certified record.  The facts on which the pursuer relies are identical to those to which the defender pled guilty. 
• [5]The defender introduced as third party the owner of the premises averring that he failed to fit toughened safety glass to the glazed panels of the door.
• [6]Mr Pitts referred to the provisions of rule 17.2 of the Ordinary Cause Rules (OCR) and section 10 of The Law Reform (Miscellaneous Provisions) Scotland Act 1968 (the 1968 Act).  He acknowledged that section 10(2) of the 1968 Act creates a rebuttable presumption and that there is no restriction on what the convicted person may offer to prove to rebut the presumption.  Relying upon the observations of Lord Diplock in Hunter-v-Chief Constable of the West Midlands Police and others [1982] AC 529 at page 544 he submitted that it was likely to be an uphill task. 
• [7]Mr Pitts referred to the decision of Sheriff Principal Scott QC in Maclay, Murray & Spens-v-Orr [2014] GWD 18.330, approved on appeal ([2014] CSIH 107) as outlining the approach to be adopted in the application of rule 17.2.  A number of points could be derived from the Sheriff Principal’s judgement.  These included:-
  1. The mere existence of a disputed issue of fact did not mean that a case required to be determined by proof.
  2. The court requires to take a qualitative assessment of the case which is claimed to have no prospect of success.
  3. The pleadings and any materials said to be the foundation of a party’s case must be scrutinised.
  4. Whether there are realistic prospects of success involves an exercise of judgement.
  5. The simpler the case the easier it is likely to be to take the view that summary decree should be resorted to.
• [8]In this case the facts in the criminal case and the present were identical.  The defender required to prove, on balance of probabilities, that he did not commit the offence complained of.  This had to be a very difficult task given the plea of guilty.  There was nothing on record to give any reasonable prospect of the defender showing that it was more likely than not that he did not commit the deliberate act resulting in the pursuer’s injury.  The defender admits the conviction.  It is not averred that the advice to plead guilty was wrong, that the conviction was wrong or that the conviction was appealed on any ground contrary to the position in the case of Paterson-v-MacLeod and others [2017] CSOH 20.  The defender’s deliberate act caused the pursuer’s injury.  Contributory fault is not pled although there are some irrelevant averments about provocation. 
• [9]All that can be taken from the defences on record is that the defender committed the act, that he admits to doing so culpably and recklessly and that that act caused the pursuer injury.  The type of glass in the door is an issue for apportionment between the defender and third party rather than a defence to the action in contrast to the circumstances of the case of Hall-Craggs-v-Royal Highland Show [2016] CSOH 8.  In that case the issues in the civil action were not identical to those considered in the criminal prosecution.
• [10]With regard to materials the defender has now lodged CCTV footage.  This was available to the solicitor who advised the defender to tender a plea of guilty to the charge, although not yet seen by Mr Pitts.  Commission and diligence was granted to the defender on 26 September 2016 for recovery of witness statements.  Since these have not been lodged in process it may be assumed that they are not supportive of the defender.

   

  Defender’s Submissions

• [11]Mr Harrison referred to the test as stated by Lord Rodger in Henderson-v-Nova Scotia Ltd 2006 SC (HL) 21.  At paragraph 15 he said “A motion for summary decree will be appropriate where the pursuer anticipates being able to satisfy the court without the need for any prolonged legal debate that there is no defence to the whole or part of the action because the defender’s averments are irrelevant.”  At paragraph 19 Lord Rodger continued “In other words before he grant decree the judge has to be satisfied that even if the defender succeeds in proving the substance of his defence as it has been clarified his case must fail……[summary decree] is only appropriate where the judge can properly be satisfied on the available material that the defender is bound to fail and so there is nothing of relevance to be decided in a proof.”.
• [12]It was accepted that the rule had changed since Lord Rodger’s observations.  The test required to be considered along with the decision in Maclay, Murray & Spens.  Mr Harrison submitted that the defender did have real prospects of success in his defence to the action.  This was a personal injury action with abbreviated pleadings but he submitted that there was sufficient specification to counter the pursuer’s criticisms.  He accepted that the averments about provocation did not amount to a defence. 
• [13]The basis for challenge was contained in Answer 6.  The defender had no delictual intention.  He was entitled to expect, and, Mr Harrison submitted, had in contemplation, that the premises would be safe and in accordance with the law.  There was now new material in the form of a report from a skilled witness.  This was sufficient to allow the defender to test liability.  He accepted that there were difficulties and that the onus of proof had shifted to the defender.
• [14]He referred to the decisions in Hall-Craggs and Towers-v-Flaws and another [2015] CSIH and relied upon Lady Wolffe’s rejection of a narrow construction of section 10(2) of the 1968 Act. 

   

  Third Party

• [15]The third party had no submissions the issue being one between the pursuer and defender.

   

  Pursuer’s response

• [16]In reply Mr Pitts reiterated that the type of glass was irrelevant to the issue between the pursuer and defender.  If the conduct of the defender was removed there would have been no injury.  He referred to paragraph 28 of the decision in Towers wherein Lord Justice Clerk Carloway said “There is no question of challenging a criminal conviction.  That conviction stands.”.

   

  Discussion

• [17]An application for summary decree may be made where the opposing party’s case has no real prospect of success and there are no other compelling reasons why decree should not be granted.  It was not suggested that there were any other compelling reasons why decree should not be granted and so the only question is whether the defender’s case has realistic prospects of success.  In order to answer the question, as outlined in the decision by Sheriff Principal Scott in Maclay, Murray & Spens, it is necessary to scrutinise the pleadings and any other materials relied upon and to carry out a qualitative assessment of the defender’s case.
• [18]The pursuer’s case is straightforward.  On 6 April 2014 he attempted to enter Pino Pizza premises in Queen Street Lossiemouth.  The door, in which there were glass panels, was locked.  The defender and others were inside the premises.  The defender struck one of the glass panels, which shattered.  Shards of glass struck the pursuer’s face causing injury.  The defender pled guilty to a charge of culpable and reckless conduct.  The pursuer has produced copies of the Indictment, detailing the charge, and extract conviction. 
• [19]It is significant to note that in his Answers the defender admits the conviction for culpable and reckless conduct.  Having done so, and having regard to the terms of the charge to which he pled guilty, it is less than candid to aver that it is not known and not admitted that shards of glass struck the pursuer’s face.  The defender makes some averments about the pursuer’s conduct as a result of which he avers he became provoked and intolerant.  Such averments are irrelevant.  The defender also avers that he “rapped the top glass panel with the outside of his right hand intending for the noise of this to prompt the pursuer to stop.  Instead the glass panel unexpectedly shattered.”  This contrasts with the acknowledgement, implicit in his plea of guilty, that he did “culpably and recklessly punch through the glass window of the door of the premises with a total disregard for the consequences whereby glass struck the pursuer on the face and lodged in his eye whereby he was seriously injured and suffered permanent impairment to his sight.”.  Notwithstanding the criticism of the defender’s candour in his pleadings there is in his answers no denial of the pursuer’s account of the incident. 
• [20]In terms of section 10(2)(a) of the 1968 Act where a party in a civil action is proved to have been convicted of an offence he is presumed to have committed the offence “unless the contrary is proved”.  The defender admits that he was convicted of the offence as charged and he is therefore presumed to have committed the offence unless he proves the contrary.  Unlike the case of Paterson-v-Macleod & Ors there are no averments to suggest that the defender had any grounds to disagree with the advice tendered to him or the conviction.  There are no averments to suggest that any appeal was marked or even contemplated.  As Lord Carloway said in Towers, the conviction stands.
• [21]Mr Harrison relied upon observations by Lady Wolffe in Hall-Craggs.  At paragraph 19 she said “I do not accept the pursuer’s submission that s10(2) is to be narrowly construed.  Section 10(1) of the 1968 Act introduced the benefit to a party of being able to rely to advantage on a conviction.  It reverses the onus onto the convicted party and absent that onus being discharged the subject matter of the conviction is then taken as proved.  That is the function of s10(1).  However in my view there is a concomitant right afforded to the “convicted” party facing such a case by s10(2) to try to rebut that onus.  In other words the convicted party may endeavour to show that they did not commit the offence which is the subject matter of the conviction.  (That is not the same as showing that they were wrongly convicted and that is why in my view the Inner House in Towers held as irrelevant averments which had that as their object.)  The scope of what a party endeavouring to displace the onus placed on them by s10(1) is entitled to prove must, in my view, be commensurate with the whole subject matter of the conviction itself.  If it were otherwise and the scope of what might be permissible under s10(2) were limited…there would be an inherent unfairness to the convicted party.” 
• [22]I did not understand Mr Pitts to take any issue with Lady Wolffe’s interpretation of section 10 of the 1968 Act.  In Hall-Craggs the pursuer moved for summary decree inter alia on the ground that the defenders had been convicted under section 3 of the Health and Safety at Work etc. Act 1974.  It is not necessary for the purposes of this Note to rehearse the facts of the case.  However, her Ladyship was not persuaded that there was “the requisite identity of issues as between the conviction and the bases of liability in these proceedings”.  In this case, however, it appears that the “requisite identity of issues” is present.  The pursuer relies upon the fact, which is not denied, that the defender struck, or, as was libeled on Indictment, punched a glass panel in the door of the premises whereby the glass shattered and the pursuer suffered injuries.  That is the basis of the averments on liability and it was the basis of the conviction of the defender following the incident. 
• [23]What the defender pleads is that, although acknowledging that he behaved in the manner averred by the pursuer, the pursuer would not have sustained injury if the third party had installed toughened safety glass in the door panel.  While that might offer an argument for apportionment with the third party, and I express no view as to the likelihood of success of such an argument, it does not in my opinion offer the defender a defence to the pursuer’s claim.  The defender does not aver on record that he did not commit the offence of which he was convicted.  The defender does not aver that had he known that the glass was not toughened safety glass, which would not be expected to shatter, he would not have struck the panel.  Indeed given that by pleading guilty to the charge libeled on Indictment he accepted that he acted culpably and recklessly, that is with total disregard for the consequences, it would not seem that such an averment could properly be made. 

   

  Decision

• [24]It was incumbent on the defender to aver and in due course show that incident occurred without fault on his part.  While he has made some averments about what might have happened if toughened safety glass had been fitted, which might suggest some fault on the part of the third party, it does not appear to me that these averments demonstrate that he has a defence to the claim by the pursuer that the incident, and thus the injury, were caused, at least in part, by his fault.  Having scrutinised the pleadings and considered the other material available it does not seem to me that the defender has demonstrated any realistic prospect of discharging the onus of proof imposed upon him by section 10(2) of the 1968 Act.  For these reasons I will grant the pursuer’s motion number 7/9 of process restricting further enquiry to the issues of quantum and any apportionment of liability as between the defender and third party.  The mode of enquiry remains to be determined in terms of the pursuer’s opposed motion number 7/8 of process.  I was not addressed on the question of expenses and I will reserve these meantime.  It would be appropriate that the issues of the mode of enquiry and expenses be dealt with together.