Timingis everything

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Timing is everything
Stephen Boyd considers the case law regarding the issue of concurrent civil and criminal proceedings

Stephen Boyd is a barrister specialising in commercial litigation from Selborne Chambers

an a claimant pursue a civil action if this leads to the defendant having to disclose his defence, and indicate what his defence is likely to be in concurrent criminal proceedings? In Jefferson Ltd v Bhetcha [1979] 1 WLR 898 the Court of Appeal held this scenario was not debarred by any principle of law. However, the court held it had a discretion to stay the proceedings if it appeared that justice between the parties so required, where concurrent criminal proceedings arose from the

same subject matter and taking into account the defendants’ ‘right of silence’ in the criminal proceedings. Each case must be judged on its own facts and the burden is on the defendant to show it is just and convenient to interfere with the claimant’s right of having his claim processed and decided. The court gave examples of relevant factors (p 905): G The civil action would be likely to obtain such publicity as might sensibly be expected to reach, and to influence, persons who might be jurors in criminal proceedings; G If the criminal proceedings were likely to be heard in a very short time; G If it could be shown there was a real danger the disclosure of the defence in the civil action would, or might, lead to a potential miscarriage of justice in the criminal proceedings, by enabling

prosecution witnesses to prepare a fabrication of evidence, or leading to interference with witnesses.

Re DDR Futures Ltd
In Re DDR Futures Ltd [1989] 1 WLR 778, former directors (the defendants) of a company in liquidation applied for a stay of proceedings brought by the liquidators. The latter had obtained ex parte Mareva injunctions against the defendants less than two weeks after they were arrested and charged with conspiracy to defraud and with breaches of s 330 of the Companies Act 1985. The case was one which would attract widespread publicity. Millet J held that while there was a real risk of prejudice to the defendants’ right to a fair trial if the civil proceedings were heard before the criminal proceedings, there was no sufficient

290 SJ 14.03.03

reason to stay the proceedings. The defendants’ interests could be safeguarded in other ways, and a large number of clients who had invested through the company would suffer serious injustice if discovery and inspection were delayed until the conclusion of the criminal proceedings; The defendants could be sufficiently protected by undertakings by the liquidators not to disclose the contents of any affidavit or document disclosed, save with the prior written consent of the defendants’ solicitors or leave of the court, and by directing that: G All further interlocutory proceedings be held in camera; G Directions be sought as to pleadings; G The case should not be set down for hearing without the leave of the court; and G Steps be taken in due course to ensure trial of the civil proceedings should not take place before the conclusion of the criminal proceedings.

Practice points
I If faced with concurrent proceedings, defendants may apply for a stay of the civil proceedings until after the resolution of the criminal proceedings. I Such an application is likely to fail if it is based simply on the argument that service of a statement of case and affidavits in response to interlocutory applications would force the defendants to disclose details of their defence and that this would circumvent their privilege from self-incrimination. I The application may succeed if the defendants can produce credible evidence of some prejudice but, depending on the facts, the court may find that their interests can be safeguarded in other ways. I Accordingly, the only inhibiting factor about bringing concurrent civil proceedings is the possibility of delay consequent upon a stay. I However, this should not trouble a claimant with a freezing order in place.

Surrey Oaklands NHS Trust v Hurley
The question of a stay was considered by Sullivan J in Surrey Oaklands NHS Trust v Hurley (unrep, 20 May 1999 , QBD ). The judge reviewed Jefferson, DDR Futures and the European Convention on Human Rights and refused the application for a stay. In relation to self incrimination, he said (at p16): “It is very difficult to see how, in putting forward material to rebut the claimant’s contention that there is no real prospect of him being able to successfully defend the claim, the first defendant would be in any danger of incriminating himself.” Sullivan J accepted counsel for the first defendant’s submission that the evidential requirements under the civil and criminal law as to mens rea were not the same. But he said it was

fanciful to suggest that if there really is a defence to the civil proceedings, disclosing it in response to the application for a summary judgment would place the first defendant in any danger of self incrimination. Any such defence could only tend to exonerate, rather than incriminate, the first defendant. The judge agreed with counsel for the claimant (at p 19) that in deciding whether there was any danger of unfairness in the first defendant’s criminal trial, one should bear in mind developments in criminal procedure since Jefferson was decided. Under the Criminal Justice and Public Order Act 1994 adverse inferences may be drawn from silence, either during interviews by the police, or in court. Under s 5 of the Criminal Procedure and Investigations Act 1996, a statement setting out the general nature of a defendant’s defence and matters where issue is taken with the prosecution may be required and, if it is not forthcoming or if it is departed from, comment may be made and adverse inferences may be drawn. “Thus, in reality, if the first defendant has remained and continues to remain completely silent in the criminal proceedings, it will be permissible for adverse inferences to be drawn. Against that background, I

CPR 23, PD 11
“A.1 An application for the stay of civil proceedings pending the determination of related criminal proceedings may be made by any party to the civil proceedings or by the prosecutor or any defendant in the criminal proceedings. A.3 The evidence in support of the application must contain an estimate of the expected duration of the stay and must identify the respects in which the continuance of the civil proceedings may prejudice the criminal trial.”

do not see how setting out his defence (if he has any) to the civil proceedings could lead to unfairness in the criminal proceedings. Moreover, if material is disclosed in the civil proceedings which should not, in the interests of a fair trial be referred to in the criminal proceedings, then the trial judge in those proceedings has the power to exclude that material under s 79 of PACE.” On the subject of fairness, Sullivan J said fairness meant not merely fairness to the defendant but fairness to the claimant as well. If there really was no defence to the claim, it would be most unfair to the claimant for the proceedings to be delayed by a stay. The fact a Mareva injunction was in place was no answer. The claimant was entitled to his judgment if the defendant had no real prospect of successfully defending the claim. “Accepting [counsel for the first defendant’s] submissions would have this curious result. If an employee was accused of stealing his employer’s money, the latter would be in a worse position if the CPS considered that the evidence was sufficiently cogent to justify a criminal charge or charges, than if the CPS considered that the evidence was weak and therefore did not feel able to prefer a criminal charge or charges. Thus, the stronger the prima facie case against the employee, the more difficult it would be for his employer to have his claim dealt with expeditiously. In my view that would be most unjust and contrary to the overriding objective” I

14.03.03 SJ 291

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