Gilani v Saddiq & Ors

Permission under CPR 31.22 to use documents disclosed in civil proceedings for another purpose is governed by the interests of justice. The applicant must show special circumstances by cogent and persuasive reasons, and the court must be satisfied that permission will not cause injustice to the person who disclosed the documents.

The public interest in the effective prosecution of crime, including fraud, may be a material and decisive factor. A private prosecution is not thereby reduced to a purely private dispute. The court granting permission need not conduct a detailed document-by-document assessment where the criminal and civil proceedings are closely related and relevance is not obviously absent. Questions of fairness or admissibility in the criminal trial are ordinarily for the criminal court.

The claimant brought civil proceedings concerning an alleged joint venture and the transfer and mortgaging of two properties. He also instituted a private prosecution against two defendants for fraud arising from substantially the same matters.

The claimant sought permission under CPR 31.22 to use 203 documents disclosed by the defendants in the civil claim in the criminal proceedings. The defendants had opposed staying the civil proceedings and had not claimed privilege against self-incrimination during disclosure. The central issue was whether the interests of justice and the public interest in effective criminal prosecution justified releasing the documents, without causing injustice to the defendants.

1. Application granted. Permission was granted under CPR 31.22 for the claimant to use the disclosed documents in the private prosecution.
2. The discretion is general and must be exercised in the interests of justice on all the circumstances. Because disclosure is compulsory and documents are prima facie confidential, the applicant must establish special circumstances by cogent and persuasive reasons. The court must also be satisfied that permission will not occasion injustice to the person who disclosed the documents. The expression that the bar is high adds nothing to that established formulation.
3. The public interest in the effective prosecution of serious crime, including fraud, is a material and potentially decisive consideration. That principle applies even though the prosecution is private, since the prosecution remains subject to the public interest and is not merely a private dispute.
4. The prosecutor has a duty to place relevant evidence before the criminal court. Any issue concerning privilege against self-incrimination, unfairness in the use of the documents, or admissibility should ordinarily be determined by the criminal court. The defendants had not asserted privilege during civil disclosure, and the risk of prejudice to the other defendants from any future joinder was speculative.
5. The proposed use was collateral but not improper. The criminal and civil proceedings were closely factually related, and the criminal proceedings had already been found not to be an abuse of process. The court was not required to determine the relevance of each document to each criminal issue. Since it was not obvious that the documents could not be relevant, permission was not refused or limited on that basis.