Insurance And Reinsurance Weekly Update - 19 June 2012

Welcome to the twenty-first edition of Clyde & Co's (Re)insurance and litigation caselaw weekly updates for 2012.

These updates are aimed at keeping you up to speed and informed of the latest developments in caselaw relevant to your practice.

Contents

CXX v DXX A case on whether criminal convictions can be contested in a civil case.

A and B v Hampshire Constabulary A case concerning barrister immunity following Jones v Kaney.

Mackew v Moore A decision on whether the English or Swiss court was first seised and which proceedings a freezing injunction was intended to support.

Other News Changes to the CPR in April 2013 re costs unveiled in a speech by Lord Neuberger to the Law Society.

CXX v DXX

Whether criminal convictions can be contested in a civil case

http://www.bailii.org/ew/cases/EWHC/QB/2012/1535.html

The defendant was convicted in a criminal case and the claimant brought civil proceedings against him based on the same facts. The Court of Appeal (Criminal Division) refused the defendant leave to appeal against the conviction but he subsequently applied to the Criminal Cases Review Commission ("CCRC"). He argued in the civil proceedings that he should not be barred from challenging the conviction (and certainly not before the outcome of the CCRC application is known).

There are two previous conflicting High Court authorities concerning whether a defendant can relitigate a criminal conviction in a civil case on the same matter. In this case, Spencer J held that section 11(2) of the Civil Evidence Act 1968 (which provides that "In any civil proceedings in which ....a person is proved to have committed an offence by or before any court in the United Kingdom...(a) he shall be taken to have committed that offence unless the contrary is proved....") undoubtedly gave a defendant the right to challenge a conviction by showing on the evidence (if he can) that the conviction was wrong. It cannot be the case that it is automatically an abuse of process to seek to do that which the statute permits a defendant to do. However, it all depends on the circumstances. In this case, the judge was satisfied that the defendant was not challenging the conviction just to vex the claimant and so there was no abuse of process.

Nevertheless, the conviction was "weighty evidence", especially in light of the unsuccessful criminal appeal. Given all the circumstances, there was no real prospect of a successful defence and the claimant was entitled to summary...