V v C

[Donald ramsbottom]

Something on self incrimination. From Lawtel. As ever do not read if not
interested in Law.


V v C (2001) 

Court:
CA (Brooke LJ, Waller LJ, Longmore LJ) 16/10/2001 

Subject:
CIVIL PROCEDURE - EVIDENCE 

Descriptors:
PRIVILEGE AGAINST SELF-INCRIMINATION : CIVIL PROCEEDINGS : SUMMARY JUDGMENT 
: CPR PART 24 : CONCURRENT CRIMINAL PROCEEDINGS : DEFENCES : COMPEL ON PAIN 
OF PUNISHMENT : COMPULSION : STAY OF PROCEEDINGS : DISCRETION 

Summary:
The privilege against self-incrimination did not give rise to a defence in 
civil proceedings, nor did it give rise to a right not to plead a defence in 
civil proceedings. The judge had been right not to stay the current
proceedings 
pending the determination of concurrent criminal proceedings arising out of 
the same facts and matters. 

Text:
Defendant's ('C') appeal from the decision of McCombe J on 8 March 2001 by 
which he: (i) allowed an appeal by the claimant ('V') from the decision of 
Master Miller on 27 September 2000 who had dismissed V's application for
summary 
judgment against C; and (ii) gave final judgment against C for 11,300,000 
and on a further aspect gave judgment on liability with damages to be
assessed. 
V's case against C was based upon allegations of breaches of fiduciary and 
other duties. By his defence C stated that he could not plead any positive 
case in answer to the allegations against him because in so doing he might 
incriminate himself in relation to prospective criminal proceedings arising 
out of the same facts and matters. V applied for summary judgment. A witness 
statement on behalf of C said nothing, even in the most general terms, about 
the nature of C's defence, but repeated his assertion that he was entitled 
to rely upon the privilege against self-incrimination. The Master accepted 
that assertion and consequently dismissed V's application. McCombe J held
that: 
(a) V had proved its case for summary judgment; (b) although C might be
entitled 
to claim the privilege against self-incrimination in principle, that of
itself 
was not an answer to V's application; and (c) C was effectively seeking a
stay 
of proceedings or was inviting the court to decline to proceed with a summary 
determination for fear of prejudicing a fair trial in the criminal
proceedings, 
but that there was no justification for so doing. 

HELD: (1) The privilege against self-incrimination was against being
compelled 
"on pain of punishment" to provide evidence or information. The privilege did 
not give rise to a defence in civil proceedings, nor did it give rise to a 
right not to plead a defence in civil proceedings. It could not, therefore, 
provide any basis for resisting a summary judgment application. (2) In
considering 
whether a defendant was being constrained from putting forward a defence in 
civil proceedings, material considerations would be that: (i) there was no 
right to silence in civil proceedings; (ii) given the need to put forward a 
positive defence at an early stage in criminal proceedings, the disclosure 
of a defence in civil proceedings was unlikely to disadvantage a criminal
defendant; 
and (iii) it was legitimate to start from the position that a positive
defence 
was likely to exculpate rather than incriminate. (3) McCombe J had been right 
not to stay or adjourn the current proceedings pending the determination of 
the criminal proceedings and had been right to proceed to give summary
judgment. 
(4) In the circumstances, although the appeal would be dismissed, it was
appropriate 
to give C 14 days to apply for time to amend his defence and to resist V's 
application for summary judgment on the merits. 

Appeal dismissed. Order accordingly. 

Donald Ramsbottom BA LLb (Hons) PGdip
Ramsbottom & Co Solicitors
Internet and Global Encryption Law Specialists & General UK  Law Matters
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