Report No. 185

Section 42A (proposed in 69th Report but not finally recommended)

In the light of above discussion, question arises whether there should be a separate provision for making judgments in a criminal case relevant in civil cases. The 69th Report considers this aspect in para 16.48 etc. The English statute of 1968 was considered and in para 16.67 the suggested section Section 42A is drafted but it is said finally.

"After considerable discussion; we have decided not to recommend any such change."

In England, it was also the law in Hollington v. Hewthorn 1943 (1) KB 587 that a previous conviction is irrelevant in a latter civil case. That was a case of collision between two cars. In a subsequent action for damages, the earlier conviction was treated as irrelevant.

In England, by Section 11 and 13 of the Civil Evidence Act, 1968, the common law rule was changed. Section 11 related to 'conviction as evidence in civil proceedings' and Section 12 of 'findings of adultery and maternity as evidence in civil proceedings'.

In the 69th Report, in para 16.59 etc., the case law after the 1968 Amendment in UK was referred to. Then Section 42A was formulated and finally, it was said that it was not being recommended after "further discussion". No reasons were given for giving up the proposal for adding Section 42A.

Now we find that the UK 1968 Amendment was carried into Civil Evidence Act, 1995 and it is stated by Phipson (15th Ed, 1999, para 38.78) "but the legislature accepted the view that these provisions by themselves would not be sufficient". Phipson says (para 38.78):

"Whichever policy is regarded as preferable, it is submitted that there are intelligible reasons for that adopted by the courts, and the various factors which have been outlined in this paragraph provide a composite rationale for the doctrine (which is still effective in relation to a wide range of verdicts) which was not sufficiently articulated in Hollington v. F. Hewthorn & Co.Ltd. 1943 KB 587. Notwithstanding recent criticisms of the decisions which have high authority (Hunter v. Chief Cons of the West midlands 1982 AC 529, Hollington v. F. Hewthorn & Co. was treated as clear authority by the Privy Council in Hui Chi-ming v. R: 1992 (1) AC 34. Consequently, it is probably safer to say that the rule still applies in all cases not covered by common law exceptions (admiralty, matrimonial, bankruptcy, etc.) or the various statutory exceptions."

If in England, there is, even after the amendments, a feeling that the new provisions are not sufficient and the House of Lords in 1982 and the Privy Council in 1992 have taken divergent views in relation to the correctness or applicability of Hollington, we are of the view that the 69th Report did well in not proceeding with the proposed Section 42A to make previous convictions admissible in latter cases. We leave the matter at that.

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