A driver of a motorcar pulled out into the path of a motorcyclist. This resulted in a serious collision in which the biker was badly injured. The car driver was prosecuted for Careless Driving. He pleaded not guilty but, after a trial, was found guilty before the Magistrates. His licence was endorsed with 9 points, signalling their disapproval of his poor driving (as a note, Careless Driving may be punished by endorsing the licence with 3 to 9 points, or a period of disqualification – Generally, the higher the points the more appalling the driving).

The motorcyclist brings a civil claim in which his solicitor pleads the conviction as evidence of the motorcar driver’s wrongdoing. This is interesting as a general rule under Hollington v F. Hewthorn & Co [1943] KB 587 is that findings of courts and tribunals are not admissible in subsequent proceedings.

There is an exception to this general rule and that can be found at S.11 of the Civil Evidence Act 1968; this trumps the common law principle and allows the motorcyclist to raise a presumption that the car driver is to blame for the accident, by reason of his criminal conviction.

The burden is on the car driver to prove he did not commit the offence. This is not a re-hearing, or a ‘second bite’ at the cherry as the bar is very high and it would not be open to the driver to reargue his case in the civil claim as to his bad driving. I suspect, running the same defence he ran before the Magistrates’ will result in a summary judgment application, which if successful, would mean the motorcyclist wins his claim outright in the civil court. If there is new evidence, this might allow a re-hearing in part but there is a very thin line between a re-hearing, on the same issues, and an abuse of process. The new evidence must ‘entirely change the aspect of the case’. This rarely happens, as any potential defence is usually explored in the criminal courts, as opposed to ‘coming to light’ in the subsequent civil proceedings.

It should be noted this only applies to decisions in the UK courts. Convictions in foreign courts are not admissible in English proceedings.

It is still open for the motorcar driver to argue ‘contributory negligence’, that is to say the motorcyclist did something wrong which would result in a finding of blame. The most common argument is in relation to excess speed. However, the burden rests with the motorcar driver. It is not enough for the car driver to ‘allege’ excess speed; he must prove it by evidence.

I recall taking a note in a criminal case where the car driver said, ‘I just did not see the biker…’. Fast forward to the civil claim, the car driver alleged ‘the biker was speeding down the road’. That was given short shrift, as he cannot say he did not see the biker yet at the same time give evidence as to the biker’s speed. This also explains why it is sensible for a solicitor to attend the criminal hearing to take a good note; there is no recording made in a Magistrates’ Court trial. You cannot ask for a copy of the transcript. It does not exist!

The same applies in reverse. I act for a biker who, very sadly, was convicted of the death of his pillion passenger by Careless Driving (read Riding). The car driver involved in this accident was acquitted of the same charge. Civil proceedings followed the event in which the Law Reform (Contributory Negligence) Act 1945 was used. Paragraph one of that Act allows the court to apportion blame between the parties, notwithstanding the fact the biker is the one who has the criminal conviction. Such blame may be apportioned as the Court thinks is ‘just’ and ‘equitable’, having regard to the parties’ respective share of responsibility. A decision is expected in this case very shortly; I do not identify the case by name so as not to breach any client privilege. In any event the principle of open justice applies. Meaning anyone can attend open hearings in their local court and also apply to access key documents in court cases. I would really recommend going along to your local court to see how justice is served in this country.

Gavin Grewal

TVAM Slipstream