Could summary decree be granted in a case where the defender had admitted pleading guilty to a criminal charge involving the same circumstances?

The Issue

Where there has been a criminal conviction, the provisions of section 10(1) of the Law Reform (Miscellaneous Provisions) Scotland Act 1968 allow someone making a claim to rely on that in any related civil claim. However, section 10(2) also allows the defender to offer to prove that he did not commit the offence.

The question the court had to consider in this civil matter was whether an admission of a criminal conviction relating to the same circumstances was sufficient to allow Mr Moir to succeed in his claim without the need for any evidence to be heard.

The Facts

On 6 April 2014, John Memsie decided that he would like some pizza, and so decided to visit his local pizzeria, Pino Pizza, in Lossiemouth. However, when he arrived, the glass doors were locked. There was apparently some attempt at discussion with staff inside the premises, who included Kyle Moir. Clearly not satisfied with the responses he was receiving, Mr Memsie decided to get their attention by striking one of the glass panels, causing it to shatter and shards of glass to fly into Mr Moir’s face.

As a result, Mr Memsie was criminally charged with culpably and recklessly punching through the glass window with no regard for the consequences. He pleaded guilty to the charge.

Mr Moir raised a civil action for damages as a result of the injuries sustained by him when the glass shattered onto his face. As part of his case, he relied on the criminal conviction.

In his defence to the civil claim, Mr Memsie admitted the criminal conviction, but brought the owner of the premises into the action, arguing they should have installed toughened safety glass. He also argued he was provoked.

Having considered the defences, Mr Moir then sought summary decree in terms of Rule 17.2 of the Ordinary Cause Rules, arguing the defence put forward by Mr Memsie had no real prospects of success. The facts in both the criminal case and the present one were identical. He would not be able to rebut the presumption offered by section 10(1). Mr Memsie’s statements about provocation were irrelevant.

On the other hand, Mr Memsie argued he had a sufficient defence to allow the matter to go to a hearing on the evidence. He had no intention to cause harm. He was entitled to assume the premises would be safe and in accordance with the law, and in particular that toughened safety glass would be in place. He accepted however that the arguments about provocation were not a defence.

The Decision

Sheriff Mackie found in favour of Mr Moir, and granted summary decree.

It was of significance that Mr Memsie admitted the conviction for culpable and reckless conduct. In terms of section 10(2) of the 1968 Act he is therefore presumed to have committed it unless he proves to the contrary. There was no suggestion by Mr Memsie that he would take any issue with the advice given to him in relation to the criminal conviction, or that he was contemplating any appeal of that conviction.

The circumstances behind the criminal conviction and this action were identical. It was not argued in his defence that he did not commit the offence, or even that had he known the glass was not toughened, he would not have hit it. Indeed, given his guilty plea in the criminal proceedings, it is difficult to see that he could properly make such an argument.

The height of his defence was a case against the owner of the premises in relation to not installing toughened glass. That was a matter that would require to be determined as between them. It was not a defence to the pursuer’s claim.

What can we learn?

  • Though it may seem obvious, this case serves as an important reminder that defenders should always be conscious of whether their written defences actually offer a stateable defence to the claim, even if only in the form of contributory negligence.
  • There is an assumption that as long as a defender tries to rely on some sort of defence, the matter will at least continue on to a hearing on the evidence.This decision shows that it is not always so.
  • Where there has been a criminal conviction, the defender will often face an uphill battle to make out a relevant defence, and savvy claimant’s solicitors will seek to obtain summary decree as happened here.