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(SOCIAL SECURITY BOARD PLAINTIFF
BETWEEN (
(AND
(
(W.H. COURTENAY & CO. and
(VERNON HARRISON COURTENAY
FIRST DEFENDANT
SECOND DEFENDANT

Supreme Court
Action No. 206 of 1997
18th April, 2000
Gonzalez, J.

Ms. Lisa Shoman for the Plaintiff
Mr. Fred Lumor for the Defendants

Issue Estoppel - Whether the fact that a Defendant was acquitted in a criminal trial can be raised in civil proceedings involving the same parties and the same facts for the court to dismiss the civil proceedings as an abuse of process.

J U D G M E N T

On the 22nd April, 1997, the Plaintiff issued a Writ against the Defendants claiming damages for fraudulent misrepresentation and breach of fiduciary duty with respect to the purchase of shares in Belize Electricity Company Limited (BECOL). An amended Statement of Claim was filed on the 23rd September, 1997, which stated, inter alia, that the Defendants had induced the Plaintiff to issue a cheque in the sum of $3,340,000.00 by representing that the Plaintiff would receive shares in BECOL representing five percent of its share capital and that, acting on the said representation by the Defendants, the Plaintiff did, on the 28th July, 1992, issue a cheque in the said sum of $3,340,000.00 to the first-named Defendant, which cheque was received by the second-named Defendant and deposited into an account maintained by the first-named Defendant. The Statement of Claim further alleged that no shares were in fact received by the Plaintiff for the said sum of $3,340,000.00 and that, in consequence, the Plaintiff had suffered loss and damage.

While this civil Action was still pending, the Director of Public Prosecutions on the 11th June, 1997 preferred an indictment against the Defendants charging them with: (1) theft, contrary to section 145(1) of the Criminal Code, and (2) obtaining property by deception, contrary to section 159(1) of the Criminal Code. (The Defendants were also charged with two other offences which are not relevant here). The particulars of 'theft and obtaining property by deception', as given in the indictment, were substantially the same as those set out in the said Statement of Claim filed in the civil Action.

On the 20th August, 1997, the two Defendants were acquitted by the jury of all charges in the criminal trial.

The civil Action, however, continued, and on the 11th May, 1998, a judgment in default of defence was entered against the Defendants for the sum of $3,340,000.00 with interest.

On the 2nd February, 1999, the default judgment was set aside by the Supreme Court and the Defendants were given leave to file a defence which they did file on the 8th February, 1999.

The Plaintiff, however, took no steps to set down the case for trial even though the pleadings had closed. On the 8th February, 2000 (exactly one year after filing their defence), the Defendants took out a summons under 0.37, r.10 of the Supreme Court Rules of Belize, for an order that the Action be dismissed for want of prosecution. This application came before me for hearing on the 25th February, 2000, and Counsel for the Defendants sought leave to amend the Summons to substitute the following ground for the ground stated in the Summons:

"That this action be dismissed on the basis that it is an abuse of the court process."

Leave was granted and the Summons amended accordingly. In the result, Counsel for the Defendants argued the case only on the above-stated new ground and abandoned the original ground.

Mr. Fred Lumor, Counsel for the Defendants, argued that this civil Action be dismissed as an abuse of the process of the Court on the ground that the facts and issues in this case had already been the subject of criminal proceedings before a jury, and that the jury had already delivered its verdict on the 20th August, 1997 on the self-same facts and issues, with the acquittal of both the Defendants. He argued that the civil Action was an attempt by the Plaintiff to re-litigate the same issues and that this amounted to a direct attack on the said decision of the Supreme Court given on the 20th August, 1997, whereby the Defendants were found not guilty. Mr. Lumor added that it was a scandalous attack on the Courts and that the Court should exercise its inherent jurisdiction and dismiss the Action summarily.

Counsel for the Plaintiff, Ms. Lisa Shoman, made no submission in reply except to say that she could not "usefully add anything to that which has already been said by Mr. Lumor". However, the learned Counsel was careful to add that her clients had not given her leave to concur with the submissions of Mr. Lumor.

As Mr. Lumor's submission runs counter to the established practice in Belize and several other common law jurisdictions, it is necessary to examine his submissions in some detail. The main authority relied upon by him was the House of Lords Decision in Hunter v Chief Constable of West Midlands [1981] 3All ER 727. The facts in this case were that the police arrested the Plaintiff with five others on 21st November, 1974 following the death of 21 people in bomb explosions in two Birmingham public houses. On 23rd November the Plaintiff and the other accused confessed to the bombings and were charged with murder. On 25th November they were brought before a magistrate who ordered them to be remanded in custody. They were admitted to prison. When the accused were again brought before a magistrate, on 28th November, their faces were badly bruised. At their trial for murder the accused claimed that they had been beaten up by the police to make them confess and that therefore their confessions of 23rd November, on which the Crown heavily relied, were inadmissible. At a lengthy trial within a trial the judge heard evidence from the accused and the police officers, and ruled that the confessions were admissible. The allegations and the evidence were then repeated to the jury to enable them to assess the weight to be given to the confessions. The accused were found guilty, and an appeal to the Criminal Division of the Court of Appeal, at which no complaint was made of the trial judge's ruling that the confessions were admissible, was dismissed. The accused then brought a civil Action against the chief constable in charge of the police officers claiming damages for assault by the police. The chief constable applied to have the Action struck out on the ground that it raised an issue identical to that which had been finally determined at the accused's murder trial. At the hearing of the chief constable's application, the accused adduced new evidence consisting of statements by the prison officers, and expert evidence from a forensic specialist who considered that at least some of the accused's injuries had been inflicted before they left police custody. The judge held that the new evidence prevented him from striking out the civil Action, because it was reasonably conceivable that another tribunal, acting judicially, might accept at least part of the accused's case. On appeal by the chief constable, the Court of Appeal held that the accused's civil Action should be struck out because it would be an abuse of the process of the Court to allow the accused to litigate again the identical issue that had been decided against them in the criminal trial and because they were barred by issue estoppel from raising the issue of whether they had been assaulted by the police. The Plaintiff then appealed to the House of Lords.

It was held by the House of Lords that initiation of proceedings in a Court of justice for the purpose of mounting a collateral attack on a final decision adverse to the intending Plaintiff reached by a Court of competent jurisdiction in previous proceedings in which the Plaintiff had a full opportunity of contesting the matter was, as a matter of public policy, an abuse of the process of the Court. The fact that the collateral attack was by means of a civil Action raising an identical issue decided against the Plaintiff in a competent Court of criminal jurisdiction was immaterial, since if the issue had been proved against the Plaintiff beyond all reasonable doubt in the criminal Court it would be wholly inconsistent if it were not decided against him on the balance of probabilities in the civil Action.

A careful reading of this case will show that it is clearly distinguishable from the case before me. In Hunter's case, the Plaintiff had been convicted in the criminal trial, whereas in the instant case, the Defendants were acquitted. The principle laid down in Hunter has no application to a finding in favour of a Defendant in a criminal trial. This distinction is well brought out by Lord Diplock himself in Hunter's case (at p. 734, letters f, g, h):

"My Lords, this is the first case to be reported in which the final decision against which it is sought to initiate a collateral attack by means of a civil action has been a final decision reached by a court of criminal jurisdiction. This raises a possible complication that the onus of proof of facts that lies on the prosecution in criminal proceedings is higher than that required of parties to civil proceedings who seek in those proceedings to prove facts on which they rely. Thus a decision in a criminal case on a particular question in favour of a Defendant, whether by way of acquittal or a ruling on a voire dire, is not inconsistent with the fact that the decision would have been against him if all that were required were the civil standard of proof on the balance of probabilities. This is why acquittals were not made admissible in evidence in civil actions by the Civil Evidence Act 1968. (My emphasis). In contrast to this, a decision on a particular question against a Defendant in a criminal case, such as Bridge J's ruling on the voire dire in the murder trial is reached on the higher criminal standard of proof beyond all reasonable doubt, and is wholly inconsistent with any possibility that the decision would not have been against him if the same question had fallen to be decided in civil proceeding instead of criminal. That is why convictions were made admissible in evidence in civil proceedings by the Civil Evidence Act 1968," (my emphasis).

Commenting on Hunter's case, Phipson on Evidence (14th Edn.) says at para 33-68:

"It is thought that the decision in Hunter v Chief Constable does not give rise to a general prohibition on the raising of issues in civil cases which have already been the subject of a conviction in criminal proceedings. The interests of finality are not so powerful as to require an accused to accept his conviction as correct for all purposes, nor does the Civil Evidence Act envisage that they should. The case is aimed at the abuse of the process by convicted persons. The principle laid down has no application to a finding in favour of a Defendant in a criminal trial. (My emphasis).


I should point out here that the Evidence Act of Belize has not so far been amended in line with the UK Civil Evidence Act, 1968 which made convictions (but not acquittals) admissible in evidence in civil proceedings. In other words, the law of Belize is still the same as was laid down in the celebrated case Hollington v Hewthorn [1943] 1KB 587. This was an Action arising out of a collision between two motor cars in which the Plaintiff alleged negligence on the part of the Defendant driver and sought to give evidence of the conviction of the Defendant of careless driving at the time and place of the collision. It was held by a strong Court of Appeal (Lord Greene, MR, Goddard and de Parcq LJJ) that both on principle and authority, evidence of the conviction was inadmissible.

In Hunter's case, Lord Diplock expressed the view (at p.734, letter j) that Hollington was wrongly decided insofar as it made convictions inadmissible in evidence in civil proceedings. But the fact remains that an Act of Parliament (Civil Evidence Act 1968) was necessary to overrule Hollington and to make convictions admissible in evidence.

Whatever view may be taken of the decision in Hollington, there can be little dispute that in Belize (as in the UK), acquittals are not admissible in evidence in civil proceedings. Mr. Lumor cited no section of the law which would sanction the admissibility of acquittals. If the fact that the two Defendants in the case before me were acquitted in the criminal proceedings arising out of the same facts is not admissible in evidence in the present civil Action, Mr. Lumor's entire argument instantly falls to the ground.

While this is sufficient to dispose of the present application, in deference to the learned Counsel, I will briefly refer to the other cases cited by him. Smith v Linskill and Another [1996] 2 ALL ER 353 was a decision of the Court of Appeal. In this case also, the Plaintiff had been convicted of aggravated burglary. He brought civil proceedings against the solicitors who had acted for him in relation to the trial, claiming damages for negligence in the preparation and conduct of his defence. The claim was struck out as an abuse of the process of the Court on the basis that it was contrary to public policy for a conviction in a criminal Court to be impugned in a civil Action by a person seeking to re-litigate the same issue. Hunter was applied. Once again, this case has no application to the instant case as it was a case of conviction in criminal proceedings and not of acquittal.

Mr. Lumor also cited the recent case of In Re Norris, a report of which appeared in The Times of London dated 27th February, 2000. In this case, the Court of Appeal held that although the High Court had power in proceedings to enforce a restraint order made under the Drug Trafficking Offences Act, 1986, to allow a third party in an appropriate case to reopen the issue whether he had an interest in the property in question, it would be an abuse of process for the Court to allow a third party to re-litigate issues which had already been decided in the Crown Court on the same or substantially the same evidence and submissions where the third party, although not a party to the criminal proceedings and not separately represented, had had a fair opportunity of putting his case before the Crown Court.

It will be readily seen that this case is widely off the mark and has little relevance to the issues in question. The decision in this case turned on the particular provisions of the UK Drug Trafficking Offences Act, 1986, which, while giving the Defendant a right of appeal against any confiscation order, gave no such right of appeal to the third party.

During the course of Mr. Lumor's argument, I raised the question whether "issue estoppel" could also arise on the facts of this case. While Mr. Lumor submitted that it could, the thrust of his argument was based on the abuse of the process of the court rather than on issue estoppel. In Mcllkenny v Chief Constable of West Midlands [1980] 2 ALL ER 227, where the facts were the same as in Hunter, Lord Denning MR and Sir George Baker were in favour of extending the description "issue estoppel" to cover the particular example of abuse of process of the court presented by that case. Goff, L.J., on the other hand, expressed his own view that such extension would involve a misuse of that expression. In Hunter, supra, Lord Diplock said that if what Hunter was seeking to do in initiating the civil Action was an abuse of the process of the court, the question whether it also qualified to bear the label "isue estoppel" was a matter not of substance but of semantics'. But Lord Diplock significantly added (at p 773, letter a):

"Nevertheless it is my own view, which I understand is shared by all your Lordships, that it would be best, in order to avoid confusion, if the use of the description 'issue estoppel' in English law, at any rate (it does not appear to have been adopted in the United States), were restricted to that species of estoppel per rem judicatum that may arise in civil actions between the same parties or their privies, of which the characteristics are stated in a judgment of my own in Mills v Cooper [1967] 2 ALL ER 100 at 104, [1967] 2 QB 459 at 468-469 that was adopted and approved by this House in Director of Public Prosecution v Humphrys [1976 2 ALL ER 497, [1977] AC 1, the case in which it was also held that 'issue estoppel' had no place in English criminal law."

Another difficulty in applying the doctrine of issue estoppel' to jury trials is the problem of determining what was decided by the jury. In Hunter's case it was the trial judge's ruling on the voire dire, giving reasons for the decision, which qualified as the final decision'. As Lord Diplock said (at p 734, letter b):

"In the instant case, the relevant final decision by a competent Court in which the identical question sought to be raised has already been decided is the ruling of Bridge J., on the voir dire in the murder trial that Hunter's confession was admissible." (My emphasis).

Lord Diplock added (at p. 734, letters d and e):

"The fact that the whole matter of the circumstances in which the confession was obtained was gone into a second time before the jury and that the jury, in view of the judge's direction to them, must clearly also have been satisfied beyond reasonable doubt that Hunter's account of the assaults on him by the police was a fabrication and does not affect the finality of the judge's ruling, though it would exacerbate the public scandal to the administration of justice that would be involved if Hunter, by changing the form of the proceedings to a civil Action, were to be permitted to set up in that Action the same case that must have been decided against him not only once but twice, even though technically it was only the first of those decisions that eventually qualified as the final decision against him by a competent court on the very question that he seeks now to raise." (Emphasis added)

In the case before me, on the other hand, it is the jury's verdict which is being characterized as the final decision' by a competent Court. As juries give no reasons for their verdicts it would be no more than a conjecture as to what issues were determined by the verdict. As Professor Telford Georges, J.A. said in Requena and Flores v The Queen, (Belize Criminal Appeals Nos. 19 and 20 of 1980 at p.6), a case which considered the applicability of 'issue estoppel' in criminal law:

"Apart from that difficulty of lack of mutuality there are practical difficulties which are set out in the speech of Lord Devlin in Connelly v D.P.P. (1967) AC 1254 and which I respectfully adopt. There may be serious problems of analysis in determining what was decided by the jury. In some case this might be done simply enough while in others it might be quite difficult, thus introducing an element of chance in the effective use of the doctrine as a bar to successive prosecutions. The problems are further compounded where the accused is convicted at the trial, indicating that the jury took a view of the facts adverse to the accused, but that decision was reversed on appeal on the ground of misdirection and no new trial ordered. Although there is clearly a verdict of not guilty which could support a plea of autre fois acquit, much sophistry would be required to discover what "issues had been decided."

Professor Georges, J.A. continued:

"It should also be frankly recognized that the verdicts of jurors represent compromises impossible to analyse as strict exercises in logic, but representing a community consensus of what seems just. Thus in Hoag v New Jersey (1958) 356 U.S. 464 at page 472, in dismissing an appeal from a conviction for robbery in which there had been a previous acquittal on a charge where another victim had been named though the facts were identical and the issue - that of identity - the same, the Court, through Harlam J., stated:

"Keeping in mind the fact that jury verdicts are sometimes inconsistent or irrational we cannot say that the New Jersey Supreme Court exceeded constitutionally permissible bounds in concluding that the jury might have acquitted the petitioner at the earlier trial because it did not believe that the victim had been put in fear, or that property had been taken from them or for other reasons unrelated to the issue of identity."

It follows that 'issue estoppel' has no application to the facts of the case before me.

I must add that although I have considered in some detail the authorities cited by learned Counsel for the Defendants, as well as the question of 'issue estoppel', the fundamental proposition that acquittals are inadmissible in evidence in civil proceedings renders the above discussion an academic exercise.

In the circumstances, the application by the Defendants to have this Action struck out on the ground that it is an abuse of process of the Court is dismissed. I make no order as to costs. Decision accordingly.


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