ABSTRACT
The rule at common law is that a judicial fi nding in one case is inadmissible, in another case between different parties, to prove the facts on which the fi rst decision was based. The reason for this is that it would be unjust for someone to have his rights affected by litigation to which he was not a party and in which, therefore, he could not be heard. In The Case of the Duchess of Kingston , 1 the unanimous opinion of the judges was that:
This is a sound general principle. Unfortunately, the principle was applied in such a way that criminal convictions had to be ignored in cases where common sense would have acknowledged them to be both relevant and of weight. Reform in civil cases was achieved by statute in 1968, 2 and in criminal cases in 1984. 3
The commission of an offence often gives rise to civil as well as criminal liability. For example, assaults are torts as well as crimes, and acts or omissions constituting the offences of careless or dangerous driving may give rise to actions for damages in negligence, or to claims under the Fatal Accidents Act 1976. Criminal proceedings usually take up less court time than civil proceedings. The question here then is: what is the status of an earlier criminal conviction at the subsequent civil trial relating to the same facts? The answer outlined at common law was that it had no status at all, despite the fact that the same defendant may be involved in both sets of proceedings. This was confi rmed in the leading case of Hollington v F Hewthorn and Co Ltd . 4
This case arose following a collision between two vehicles in which the plaintiff ’s son sustained fatal injuries. The plaintiff brought an action under the Fatal Accidents Acts against the defendants on behalf of his son’s estate. However, as his son had died, he had no evidence of the defendant’s negligence except the conviction of the second defendant for careless driving. It was alleged that the fi rst defendants were vicariously liable for the actions of the second defendant. It was argued that the conviction was admissible as at least prima facie evidence of negligence, but this argument was rejected by the Court of Appeal. In giving judgment, Lord Goddard CJ stated that:
He also referred to the impossibility of determining what weight should be given to a conviction without, in effect, re-trying the criminal case. The father’s claim failed. Doubts were expressed as to the fairness of this result, and these were refl ected in the 15th Report of the Law Reform Committee on the subject of what had come to be known as ‘the rule in Hollington v Hewthorn ’. 6 In their report, the Committee stated:
The criticisms voiced by the Committee were followed by the enactment of sections 11-13 of the Civil Evidence Act 1968. 8 Section 11 provided as follows:
Similar provisions relating to fi ndings of adultery and paternity as evidence in civil proceedings are contained in section 12.
