The Republic of Mozambique v Credit Suisse International & Ors

A civil court should determine privilege against self-incrimination issues by reference to the particular document, evidence or proposed use that creates the alleged risk. Broad declarations or prospective immunity covering all pleadings, disclosure and evidence are inappropriate where they exceed the circumstances shown.

A stay of civil proceedings pending related criminal proceedings is discretionary and requires a real risk of serious prejudice capable of producing injustice. The court must balance the defendant’s asserted risk against the claimant’s right to have its civil claim determined. A defendant’s need to formulate a civil defence will generally carry little weight as a basis for invoking the privilege.

The defendants applied in complex Commercial Court proceedings for protection against use of material in related criminal investigations or prosecutions in Mozambique and Lebanon. They sought a declaration concerning privilege against self-incrimination, directions restricting collateral use of documents and statements, a stay of the civil proceedings or disclosure obligations, and permission to cross-examine expert and governmental witnesses.

The applications were considered at an interlocutory stage. The court was asked to decide whether the defendants had shown a sufficient present risk to justify general protective orders or a stay, while recognising that more focused applications might arise later.

1. The proposed privilege declaration was refused. It attempted to abbreviate a legal position that should be applied when specific circumstances arose, contained material qualifications, and could extend to material unrelated to incrimination. Different procedural consequences also attached to disclosure, statements of case and witness evidence.
2. Protection against collateral use was confined. The court accepted some directions agreed by the Republic and made orders binding the Republic alone, subject to liberty to apply. It refused wider directions affecting other parties because the defendants had not shown that all future defence material, disclosure or witness statements created a real risk to the privilege. Decisions should ordinarily be made when the particular document and proposed use are identified, having regard also to open justice.
3. The stay application was refused at this stage. The governing principles, adopted from Bankas Snoras v Antonov [2013] EWHC 131 (Comm), required real risk of serious prejudice capable of leading to injustice. The burden lay on the defendants, and the court had to balance that risk against the claimant’s right to have its civil claim determined. The defendants had not pinpointed such a risk. Their concerns about the foreign proceedings were not shown to relate to material they would disclose, and the evidence did not establish that the Republic or the Mozambican court would disregard orders of the Commercial Court.
4. The privilege did not justify a general stay merely because a defendant would need to formulate a civil defence. The court adopted the reasoning in V C [2002] CP Rep 8 that there is no right to invoke the privilege in relation to putting in a defence in the same way as when being interrogated, compelled to produce documents or cross-examined.
5. The late applications to cross-examine experts and the Attorney General or Deputy Attorney General were refused as disproportionate and unlikely, at that stage, to add materially. Focused cross-examination or argument on expert evidence was not ruled out.
6. The court found no evidence that the Republic was using the civil proceedings as a proxy criminal investigation. The applications were therefore refused or limited as stated, with the court ready to revisit the subject if necessary.

Not an appeal. The judgment records interlocutory applications in the Commercial Court and does not state a prior appellate decision.