Interaction between civil and criminal proceedings
Cases involving parallel or consecutive civil and criminal proceedings require careful management. There is often scope for conflict or tension between the strategies adopted in each of the proceedings, the timeframes within which they are operating and the applicable procedural rules. Parallel proceedings may also increase cost, put pressure on available resources, and add complexity to the disclosure process.
There are a number of issues that prospective private prosecutors and their representatives should consider when seeking to commence a private prosecution where related civil litigation (including regulatory proceedings) is either ongoing or has preceded it.
The private prosecutor must not use the threat or commencement of a private prosecution as a strategic tool to add leverage to a party’s position in civil or other proceedings.
Private prosecutors should ensure that they comply with the common law and statutory criminal disclosure obligations in this regard. Good practice is to ensure that the private prosecutor’s motives are reduced to a written form.
Claims to privilege
It may be necessary to disclose material in the criminal case that would not fall to be disclosed in the civil case. The private prosecutor should be advised of this issue at the earliest possible opportunity.
Material that has been disclosed, served by or otherwise received from counterparties in civil or regulatory proceedings may be subject to restrictions against collateral use.14 This is an issue that should be resolved as early as possible, particularly if the prosecutor is being asked to review such material in connection with advising on the merits of a private prosecution. The prosecution may be required to apply for permission to use that material, if it does not fall within one of the exceptions provided for by the Civil Procedure Rules.
Care must be taken to ensure that interaction with a witness which may be permissible in a civil case does not prejudice any ongoing prosecution.
Witnesses who have given civil statements may have done so with the benefit of disclosure that has been made in the course of those proceedings. The prosecution will need to review and potentially disclose unused material that was generated in the course of drafting civil statements, which may include privileged material.
Private prosecutors should consider whether it is appropriate to request a stay of the concurrent civil proceedings until after the criminal proceedings have concluded.
14 See inter alia CPR 31.22(1) and CPR 32.12 and Tchenguiz & another v Grant Thornton LLP & others  1 W.L.R. 2809. Material may also be provided subject to contractual undertakings to the same effect.