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Private Prosecutions & Committal Proceedings: Not a Matter of either, or

Not a matter of either, or.

Private Prosecution and committal proceedings both considered following false statements in civil proceedings. 

PATEL v PATEL & ORS (2017)

http://www.lawtel.com/MyLawtel/Documents/AC9402187

Ch D (Marcus Smith J) 26/05/2017

CIVIL PROCEDURE: COMMITTAL FOR CONTEMPT : CONTEMPT OF COURT : PRIVATE PROSECUTION 

 

Following a decision in probate proceedings that a will had been forged, permission was granted to bring contempt proceedings.

 

Earlier proceedings:

http://www.bailii.org/ew/cases/EWHC/Ch/2017/133.html

The Applicant had been the Defendant in the probate proceedings. The Court had refused to grant probate in the case on the grounds that the will had been forged. The First Respondent had been the Claimant in the probate proceedings and was the Applicant’s brother. The Court had dismissed the claim and ordered indemnity costs; it was found that the will had been forged by the First Respondent and that he had lied when he gave evidence.

 

The Application:

The Applicant applied to bring contempt proceedings against the First Respondent and other witnesses on the basis that they had knowingly made false statements about the execution of the will and had entered into a conspiracy to mislead the Court when they gave their evidence. The Applicant also brought a private prosecution against the First Respondent for forgery and attempting to pervert the course of justice.

In response to the application the First Respondent argued a) that the Applicant was acting only out of animosity; b) that there had been a failure to warn of the possibility of contempt proceedings; and c) that the private prosecution and contempt proceedings could not both go ahead.

 

The considerations:

When considering an application for permission to bring contempt proceedings the Court had to be satisfied of the following:

  1. That there was a strong prima facie case, without the court going into the merits of the case;
  2. That the public interest required the committal proceedings to be brought
  3. That such proceedings were proportionate
  4. That such proceedings were in accordance with the overriding objective

It was noted that the discretion to grant the application should be exercised with great caution to guard against vindictive litigants who may use the proceedings to harass persons against whom they have a grievance and against the danger of reducing the usefulness of proceedings for contempt by allowing them to be pursued where the case was weak or the contempt, if proved, trivial.

 

The decision:

The Court found that with regards to point i) above, that the judgment in the probate proceedings gave rise to a strong prima facie case without going into the merits.

As to point ii) it was found to be unequivocally in the public interest to bring contempt proceedings where the pleadings and witness evidence had put forward a deliberately false case. The lies in the probate action had not been peripheral but had been fundamental to the issues in the case. It was noted that if the Respondents did not accept the judge’s findings in the probate action they would have the opportunity to demonstrate their innocence in the committal proceedings.

As to point iii) the Court was of the view that proceedings were proportionate and in the public interest despite the high level of ill-will between the family members

As to point iv) the court considered the anxiety, inconvenience and cost to the respondents was outweighed by the public interest. Given the exceptionally serious nature of the allegations, the contempt proceedings were proportionate and in accordance with the overriding objective.

The Court considered the arguments put forward by the First Respondent and in addressing points a) and b) a failure to warn was a factor, but the Respondents had been warned in clear terms of the risk of contempt proceedings if they pursued a false claim. As to point c) the pursuit by the applicant of a private prosecution against his brother was not a bar to contempt proceedings, and vice versa, provided that there was no double punishment. There was no guarantee that the prosecution would continue.

The application was granted.

It is noted that once again private prosecutions are considered and approved by the Court as an appropriate approach to findings of dishonesty in civil proceedings. Interestingly, it is clear that the Court does not view an “either, or” situation regarding committal proceedings and private prosecutions. It is clear that consideration would need to be given by the Court as to the punishments that may be ultimately be imposed, but commencing committal proceedings is by no means a bar to a private prosecution; both proceedings can legitimately be brought against a dishonest party. The contempt of court (the lying to the Court in the civil proceedings) can be properly pursued through committal proceedings and the original dishonest act could be pursued through a private prosecution (in this case the forgery of a will, it could be the staging of an accident or a conspiracy to defraud).

This is useful to bear in mind when considering the next steps after findings of dishonesty in civil proceedings, it may be appropriate to make an application for committal shortly after the findings and still a further prosecutions could follow. Careful consideration needs to be made to the points outlined above when considering the appropriate course of action. The unique experience of members of Park Square Barristers enables them to be perfectly poised to advise interested parties on the merits of private prosecutions.

Camilla deals with all aspects of Civil fraud including staged or contrived accidents, low velocity impact cases, bogus passenger claims, credit hire and exaggerated credit hire, personal injury and exaggerated personal injury claims regarding s.57 Criminal Justice and Courts Act 2015 and all otherwise dishonest claims.

Contact Camilla’s clerks

Francine Kirk on 0113 202 8605

Jordan Millican on 0113 213 5207