V v C

The privilege against self-incrimination protects a person from being compelled, on pain of punishment, to provide incriminating evidence or information. It does not provide a defence to a civil claim or a right to withhold a pleaded defence.

Concurrent criminal proceedings do not automatically prevent a civil claim or summary judgment application from proceeding. Any stay or adjournment depends upon a discretionary balance of justice. The defendant must demonstrate a real risk of prejudice, taking account of the strength of the civil claim, any genuine defence, the need for compelled evidence and the likely effect upon the criminal trial.

Where a claimant proves its case without compelling information from the defendant, the privilege does not prevent summary judgment.

The claimant alleged that the defendant had misappropriated, or was responsible for the misappropriation of, company money. It sought an account of £11.3 million and damages for breach of fiduciary and other duties. The defendant's pleading largely invoked the privilege against self-incrimination and put the claimant to proof without identifying the nature of any positive defence. A criminal investigation was underway, and the defendant was subsequently charged with fraudulent trading under section 458 of the Companies Act 1985.

Master Miller dismissed the claimant's summary judgment application, treating the privilege as a compelling reason for trial under rule 24.2(b) of the Civil Procedure Rules. McCombe J allowed the claimant's appeal. He entered judgment for £11.3 million and gave judgment on liability for further damages to be assessed.

The defendant appealed. The central questions were whether the privilege itself prevented summary judgment and whether the civil proceedings should be postponed because of their possible effect upon the criminal proceedings.

Appeal dismissed unanimously. Lord Justice Waller delivered the judgment, with which Lord Justice Longmore and Lord Justice Brooke agreed.

1. The privilege against self-incrimination is an immunity from being compelled, on pain of punishment, to answer questions or produce documents or other information which may expose a person to criminal proceedings. Section 14(1) of the Civil Evidence Act 1968 confirmed that scope. The privilege does not constitute a defence to a civil claim and gives no right to withhold a defence. A defendant remains free to plead no defence or merely put the claimant to proof, subject to the ordinary procedural consequences.

2. A defendant who seeks to stop the claimant establishing civil rights from independently available material is, in substance, seeking a stay or adjournment. Concurrent criminal proceedings create no automatic entitlement to that relief. The court must exercise its discretion by balancing justice between the parties and assessing whether continuation creates a real, rather than notional, danger of injustice in the criminal proceedings.

3. On a summary judgment application, the court may consider whether the defendant has identified a genuine defence, whether explaining it would actually incriminate rather than exculpate him, whether the claimant can prove its case without compelling information, and the likely consequences of publicity or disclosure for the criminal trial. The defendant bears the burden of showing why the civil process should not continue. A stronger civil case requires a correspondingly stronger justification for postponement.

4. The defendant had identified no defence on the merits and had not sought a stay or an adjournment. The claimant could establish its case without interrogatories, disclosure or other compelled information. The possible use of the civil judgment by prosecutors was fanciful. Any risk that publicity might affect jurors was minimal and could be addressed through ordinary judicial directions.

5. The £11.3 million award was supported by the pleaded transfers and the absence of any explanation that the relevant sums had been repaid. The pleading, read as a whole, also alleged circumstances capable of causing loss. Any detailed dispute about the quantification of further loss could be addressed when damages were assessed.

The defendant was permitted 14 days to serve an affidavit on the merits. The appeal was otherwise dismissed with costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): The first defendant's appeal was dismissed unanimously. The £11.3 million judgment and the judgment on liability with damages to be assessed were upheld, subject to a 14-day opportunity to serve an affidavit on the merits. Permission to appeal to the House of Lords was refused.
2. High Court, Queen's Bench Division: McCombe J allowed the claimant's appeal from Master Miller on 8 March 2001. He entered judgment for £11.3 million and gave judgment on liability for further damages to be assessed.
3. Master: Master Miller dismissed the summary judgment application on 27 September 2000. He treated the asserted privilege against self-incrimination as a compelling reason for disposal at trial under rule 24.2(b) of the Civil Procedure Rules.