Newsletters Private Prosecution 26th Feb 2019

The Impact of Tactical Decisions on Parallel Proceedings

The parallel use of civil actions and private prosecutions is increasingly common, particularly in cases relating to alleged fraud.  Practitioners must, however, be alive to the risk that tactical decisions in one action may have a knock on effect in the parallel action.

Such risks were brought to the fore recently in Gilani v Saddiq [2018] EWHC 3084 (Ch).  The claimant had brought a civil claim against the defendants in the Business and Property Courts.  The claimant applied to the Business and Property Courts pursuant to CPR 31.22 for permission to use documents disclosed by the defendants in that claim as evidence in his separate private prosecution against two of the same defendants for fraud.

The CPS had exercised its right to review the private prosecution and decided not to intervene, being satisfied that it was properly brought as regards the evidential and public interest tests.

CPR 31.22 provides that:

  1. A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed except where –

(a) …

(b) The court gives permission; or

(c) The party who disclosed the document and the person to whom the document belongs agree.

Giving judgment, HHJ David Cooke referred to the following considerations, which were set out in Cobra Golf Inc v Rata [1996] FSR 819 as likely to be relevant to the exercise of the discretion on whether to give permission:

(a) The extent to which relaxation of the undertaking will cause injustice to the party which provided the discovery;

(b) Whether the proposed collateral use is in court proceedings or outside litigation;

(c) Whether if the collateral use is in aid of criminal or civil proceedings, those proceedings are in this country or abroad;

(d) If the satellite proceedings are criminal proceedings in this country, the court must take into account the possibility of the application being a method of bypassing the privilege against self-incrimination.

HHJ Cooke observed that the discretion is a general one to be exercised in the interests of justice in all the circumstances of the case, having regard to the fact that the documents will have been disclosed under compulsion for the purposes of the civil proceedings, and that some good reason has to be shown for permitting any other use, but this does not mean that the grant of permission is rare or exceptional if a proper purpose is shown.  Use in criminal proceedings brought in the public interest “may” be such a purpose, and the public interest in the proper conduct of criminal proceedings will be a material, and often decisive, factor in favour of allowing disclosed documents to be used by a prosecuting authority.  The civil court is, however, entitled to have regard to any evidence that the prosecution might be being brought improperly, and must be satisfied that there is no injustice to the party compelled to give disclosure.

The judge considered certain tactical decisions made by the defendants during the civil case in granting permission for the claimant to use the documents disclosed by the defendants as part of the private prosecution.  For example, HHJ Cooke found that as the defendants had the opportunity to assert privilege against self-incrimination in the civil proceedings during the disclosure process but had not chosen to do so no such issues arose in granting permission for the same documents to be used in the private prosecution (and even if there were, any applications flowing therefrom should be determined in the Crown Court).

More significantly, however, in considering whether there was any injustice to the defendants HHJ Cooke noted that it is not uncommon that the same individuals face both civil and criminal proceedings and such defendants often seek to delay the civil proceedings on the grounds that they may occasion some prejudice to them in the criminal case.  In this case the claimant had invited the defendants to make an application to try the civil case after the criminal one.  When no such application was forthcoming the claimant made his own application arguing he did not wish to face any risk that the defendants might argue that the subsequent criminal trial was unfair because they had been prejudiced by the civil proceedings because they had been unfairly compelled to disclose documents in the civil case that were later used against them in the prosecution.  That application was resisted by all defendants during which counsel indicated that they were alive to such risks and were not asking for any safeguards as they were not concerned with any potential prejudice.

Those tactical decisions made by the defendants made it difficult for them properly to object to the application for permission to use the disclosed documents.  Even if it could be argued that the prosecution was unjustly strengthened by production of documents disclosed by the defendants that was a result they had brought upon themselves by opposing the application to stay the civil proceedings.  Similarly none of the defendants not charged in the criminal case had relied on the risk that there might be an application to join them to the criminal proceedings when they also opposed the application to adjourn the civil claim.

As a final aside HHJ Cooke noted that if it were shown that the documents sought to be released could not possibly be relevant for the purpose for which permission was being sought that would be a relevant factor to consider.  However, no such argument had been advanced, and, given the clear relationship between the facts of the criminal case and those in the civil case it could not be said, without investigation, that the documents concerned could not properly be sought for use in the criminal proceedings.

Gilani v Saddiq demonstrates why special care must be taken when conducting parallel civil and criminal proceedings not to consider each of them in a vacuum.  Separate legal teams with differing specialisms are often instructed to conduct different actions arising out of the same set of facts but this case serves as a stark reminder of the need for close liaison to ensure that any tactical decisions taken in one set of proceedings do not have a negative impact on the other.

Fiona Robertson

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