QRT v JBE

Where civil proceedings overlap with pending criminal proceedings, the civil court may pause their progression where disclosure could create a real risk of self-incrimination or prejudice to the criminal defence. The court should assess the risk realistically, distinguishing reasonable grounds from fanciful possibilities, and should consider whether protective measures can avoid prejudice.

The court may preserve electronic evidence and permit limited expert inspection while withholding the report from the parties, preserving any privilege and prohibiting use in the criminal proceedings. The overriding objective and fairness to a litigant in person remain central to the case-management decision.

The claimant alleged that the defendant sent communications threatening disclosure of explicit sexual material. The defendant denied responsibility and identified a third party as a possible source. Civil proceedings included an interim injunction and previous orders for inspection of three electronic devices by a single joint expert.

The claimant had also brought a private prosecution alleging harassment, due to be tried in the Crown Court. The defendant argued that the civil proceedings should await the criminal trial because disclosure might infringe privilege against self-incrimination or prejudice his defence. The claimant accepted that ordinary progress to witness statements and further disclosure should be deferred, but sought implementation of a limited device-inspection order.

1. Case management and the criminal proceedings. The criminal court alone controlled whether the private prosecution should proceed. The civil court nevertheless had to decide whether progression of the civil claim should await the criminal proceedings. The defendant’s status as a litigant in person was relevant under Civil Procedure Rule 3.1A, but did not relieve him of the obligation to conduct his case properly: Barton v Wright Hassall 2018 UKSC 12.
2. Privilege and prejudice. The court declined to determine finally whether privilege against self-incrimination applied to the devices or their contents. The issue was sufficiently uncertain to require preservation of the defendant’s position. Any relevant risk had to have reasonable grounds and could not be merely fanciful. The court also had to consider whether the civil process might prejudice or taint the criminal defence, particularly because the future course of the trial could not be predicted with precision.
3. Limited inspection and preservation. The existing order should be implemented in modified form. The devices were relevant property capable of preservation under Civil Procedure Rules 1998 Rule 25.1(c), and inspection by an expert could image and preserve their data. The expert’s investigation was to be confined to the specified video and images, with any necessary schedule of inspected files. The report was to be filed with the court only and withheld from the parties pending further order.
4. Safeguards. The defendant’s privilege was preserved as if the order and inspection had not occurred. The claimant and solicitor were to undertake not to use information obtained from the expert in the criminal proceedings. The possibility of material leakage therefore lacked reasonable grounds, and the limited inspection did not create an appreciable risk of prejudice.
5. Disposition. The civil proceedings were effectively stayed, apart from the preservative and limited expert-inspection process. The claimant’s further requests for location, internet and other disclosure were deferred until after the criminal proceedings. No unless order was made at that stage, although disregard of the subsequent order could justify a more serious sanction.

First-instance case-management decision. No prior appellate decision was stated in the judgment.