Zambia v Meer Care & Desai (a firm) & Ors Rev 1

A stay of civil proceedings pending related criminal proceedings is exceptional. It requires a real risk that their continuation will cause serious and unjust prejudice. An enforceable order preventing use of civil material in the criminal case may remove that risk.

Article 6 requires a civil trial to be fair when viewed as a whole. It does not confer an absolute right to be physically present throughout. Remote evidence, representation, access to transcripts and reasonable opportunities to give instructions may secure a fair trial where personal attendance is impracticable.

The Attorney General, acting for Zambia, brought English civil claims alleging conspiracy, knowing receipt and dishonest assistance in relation to the alleged misappropriation and laundering of government funds. Five Zambian defendants appealed Peter Smith J’s refusal on 15 August 2005 to stay the proceedings.

They were subject to criminal proceedings in Zambia and could not leave that country under their bail conditions. They contended that the English proceedings would prejudice their criminal defences and that their inability to attend the English trial would breach their right to a fair hearing under article 6.

The proposed arrangements included a private trial, restrictions on using civil material in Zambia, remote participation, and evidence by videolink or before the trial judge in Zambia.

1. The appeals were dismissed unanimously. The Court held that the expanded ring-fencing arrangements would provide adequate protection against prejudice in the Zambian criminal proceedings. The trial was to be private, and Zambia was to be restrained from using pleadings, disclosed documents, witness statements or oral evidence from the English proceedings for criminal or other purposes without the English court’s permission. Zambia’s undertaking and submission to the jurisdiction made the risk of non-compliance insignificant on the facts.

2. The discretion to stay civil proceedings pending criminal proceedings, recognised by section 49(3) of the Supreme Court Act 1981, must be exercised with great care. A stay requires a real risk of serious prejudice capable of causing injustice. The appellants established no such risk once the civil material was effectively ring-fenced: see Jefferson Limited v Bhetcha [1979] 1 WLR 898, R v Panel on Takeovers and Mergers ex parte Fayed [1992] BCC 524, and Panton v Financial Institutions Services Limited [2003] UKPC 95.

3. Article 6 and the common law require a fair process viewed as a whole. They do not give a civil litigant an absolute entitlement to attend every part of the trial in person. The essential safeguards are that the party knows the case to be answered and has a full and proper opportunity to answer it.

4. The judge could receive the appellants’ evidence by videolink or in Zambia before the trial judge. The appellants would remain represented in England, could receive transcripts or videolink access, and would be given reasonable time to instruct their lawyers. Those arrangements, though less satisfactory than personal attendance, struck a fair balance between all parties and did not create a significant risk of an unfair trial.

5. The Court recorded that an application was withdrawn. The appeals from the refusal of a stay were dismissed.

• Court of Appeal (Civil Division) — dismissed the defendants’ appeals against the refusal of a stay.
• Chancery Division — Peter Smith J refused the defendants’ application to stay the English civil proceedings on 15 August 2005.