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A DAMAGES action for #100,000 in which the widow and family of a taxi driver is suing the man acquitted of his murder was described yesterday as an abuse of the civil courts.
A judge was urged to dismiss the claim by Mrs Margaret Mullan and her three children because the family's real motive was to have Mr David Anderson branded as a killer.
However, Mrs Mullan's counsel argued that the Mullans were perfectly entitled to claim for the loss of the family breadwinner.
The Mullans are suing Mr Anderson, 24, who was charged with the murder of Mr Raymond Mullan, 38. After trial at the High Court in Paisley in May 1990, the jury returned a not-proven verdict.
Mrs Mullan, 41, of Wren Road, Greenock, is claiming #40,000 and her children, Charlene, 21, Nicola, 19, and Craig, 16, are claiming #20,000 each in an action at the Court of Session.
They maintain that, during an early morning taxi ride from Gourock to Greenock, Mr Anderson produced a hunting knife and intentionally or negligently stabbed Mr Mullan through the heart.
Mr Anderson insists that the contact between Mr Mullan and the knife was accidental. He claims he was going to hunt rabbits and had produced the knife to show the driver.
Yesterday, Mr Andrew Smith, counsel for Mr Anderson, asked temporary judge Gordon Coutts to dismiss the action because it was contrary to public policy.
If the court did not agree to dismiss the case at this stage, Mr Smith argued that there should be a preliminary hearing to decide whether the real motive behind the case was to have Mr Anderson branded as a criminal rather than to recover damages.
In his defences to the action, Mr Anderson alleges that the family is well aware that, if they win the case, the prospect of recovering any money is virtually nil since he has no job and no assets.
The family states that, by his wrongful actings, Mr Anderson, of Nelson Road, Gourock, rendered Mrs Mullan a widow at the age of 36 and deprived her and the children of the support, care, and love of Mr Mullan.
Mr Smith said: ``It is quite plain that the motive of the Mullans is to have Mr Anderson branded as a criminal. It is not motivated by any reasonable desire for a monetary decree. For that reason and reasons of public policy this is an abuse of process which should result in dismissal.''
The judge asked if the issue of the prospects of recovery was behind Mr Smith's argument.
Mr Smith replied that the prospect of recovery was one of the factors.
If the case went to a preliminary hearing, a number of questions would be asked. Why was the action raised seven days after the jury verdict? Would the action have been raised if Mr Anderson had been convicted? Had Mrs Mullan claimed criminal injuries compensation over her husband's death?
Mr Smith said he was not arguing that the Mullans were not entitled to raise a civil claim following Mr Anderson's acquittal in a criminal court. However, Mrs Mullan's motive had to be to obtain damages and he submitted that was not so.
Mr Ronald Mackay QC, for the Mullans, said the allegation was that Mr Anderson had assaulted Mr Mullan and that he had died as a result.
Assault was a civil wrong as well as a crime and the relatives of someone who died as a result of an assault had a claim for damages.
If someone died as a result of an assault, the criminal law might classify it as murder or culpable homicide, but the distinction was immaterial in civil law since damages for loss of support and loss of society were recoverable in either event.
The case continues and it is expected that judgment will be reserved.
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