A decision in one forum can prevent a defendant from contesting the same issues in another or create a presumption that the issues should be decided in the same way.
How can anticipating outcomes help devise an effective strategy to manage parallel proceedings?
At its highest, a judgment of a court in one set of proceedings can have a decisive impact on parallel proceedings by preventing a defendant from contesting the same issues or creating a presumption that the issues should be decided in the same way.
A defendant facing multiple proceedings should therefore consider as part of its overall case strategy how the issues may play out in those different proceedings. To the extent possible, it should plead its defences in a way that allows flexibility and avoids a situation where it is unable to argue its case in the way that it wants in one forum, due to the impact of a judgment made in another.
Certain types of judgment or decision have a more decisive effect than others, and so the sequencing in which the different proceedings are heard will have a significant impact on the defendant’s strategic response.
- Court judgments
Perhaps surprisingly, a civil judgment cannot have any evidential effect on subsequent parallel civil proceedings. The rule established by Hollington v Hewthorn  KB 587 is that findings of fact by earlier tribunals are inadmissible in subsequent civil proceedings because they constitute opinion evidence.
The basis for the rule is said to be that the decision at trial is made by the judge appointed to hear it and not another, however reliable (see Calyon v Michailaidis).
In Calyon v Michailaidis
, the Privy Council noted that “it is difficult to see how the court could rationally decide what weight to give to the finding of the earlier court without considering the evidence on which the finding was based.” Note that abuse of process arguments may be available to defend an action related to the same conduct or event as an earlier decided case which is pursued by the same party or parties.
Refer to Utilising procedural mechanisms: Abuse of process for further information.
A civil judgment handed down in earlier parallel proceedings would be inadmissible in the criminal proceedings because it would offend section 114(1) of the Criminal Justice Act 2003, which provides that a statement not made in oral evidence in the proceedings is admissible as evidence only if certain exceptions apply.
In R v Hogart  EWCA Crim 338, the Court of Appeal specifically stated that the rule in Hollington v Hewthorn  KB 587 means that a finding of a civil court on the matters in issue is not admissible in criminal proceedings. In that case, a civil judgment on a similar, earlier incident could be admitted only because it was evidence of bad character, which is one of the statutory exceptions to section 114(1) of the CJA.
Note that bad character evidence is, by definition, evidence which does not relate to the facts of the alleged offence.
The rules of a regulatory tribunal are likely to provide for the evidential weight of findings in civil proceedings. Though this may differ by tribunal, the most common formulation is that a civil judgment will amount to prima facie proof of the findings of fact on which the civil judgment is based, but it is not conclusive.
A respondent will be entitled to challenge those findings and call evidence in support of such a challenge; however, a regulatory tribunal is not required to conduct itself as a court of law rehearsing all the evidence underlying those findings (see General Medical Council v Spackman  AC 267 at 635; followed in Chaughari v General Pharmaceutical Council  EWHC 3433 (Admin); R (Hollis) v Association of Chartered Certified Accountants).
The tribunal will exercise its own judgment in accordance with its obligations.
- Criminal convictions / resolutions
English criminal convictions are treated with deference by other courts and tribunals. In civil proceedings, they give rise to an evidential presumption that the person committed the offence, which will be grounds for summary judgment unless the defendant has new and compelling evidence (s.11 Civil Evidence Act 1968). This reflects the higher burden of proof in criminal proceedings. This evidential presumption can be challenged but in the absence of new and compelling evidence this is likely to be very difficult. Similarly, in the absence of some significant fresh evidence or other exceptional circumstances, it is highly unlikely that a regulatory tribunal will permit a respondent to challenge the correctness of a criminal conviction (In re a Solicitor (1996) The Times, 15 March).
A jury does not give reasons for its decision and so it may be argued by a defendant that the issues decided in the criminal judgment are different to those under consideration in the parallel civil or regulatory proceedings. A transcript of the judge’s summing up at the end of a criminal trial is admissible to identify the factual basis on which a defendant has been convicted (see Brinks Ltd v Abu Saleh (No.2)  4 All E.R. 74), as is the indictment (setting out the charges brought against the defendant) on which the person in question was convicted.
Deferred Prosecution Agreements
A DPA is approved by a judgment of the Crown Court but does not amount to a criminal conviction and would not have the same legal effect (indeed this is the principal benefit for a company entering into an agreement). However, a key component of the DPA process is the publication of a Statement of Facts giving particulars of each alleged offence and attaching key documents, signed by both the SFO and the defendant company. The DPA Code provides that the company is not required to formally admit guilt of criminal offending in the Statement of Facts, but it will need to admit the contents and meaning of key documents referred to within it (DPA Code of Conduct, paragraph 6.3).
A Statement of Facts would be admissible against the company in any subsequent criminal proceedings (including prosecution for the offences which are the subject of the DPA, where the agreement is breached). It would also be admissible as hearsay evidence in civil proceedings, though its status as hearsay may affect the weight it is given by the Court. This is typically a matter for the Judge’s discretion but it seems highly likely, given the nature of a Statement of Facts and the circumstances in which it is produced, that it would be afforded significant weight.
For further commentary on these issues, see: Civil and criminal proceedings: can convictions prove facts in a civil case?
- Regulatory decisions
A public notice from a regulator will often alert civil claimants to a potential breach in relation to which they may have a claim. However, such a notice will generally not have a decisive impact on parallel civil proceedings; it is likely to be found inadmissible (applying the rule established by Hollington v Hewthorn  KB 587) as it constitutes opinion evidence, though the rules applicable to a particular regulator or tribunal may provide otherwise. Such a notice could, however, be relied on as hearsay evidence. For that reason, any company in discussion with a regulator over the terms of a notice is likely to seek to narrow as far as possible the facts to which it is agreeing publicly.
A decision of a regulatory tribunal handed down in earlier parallel proceedings would be inadmissible in the criminal proceedings because it would offend section 114(1) of the Criminal Justice Act 2003, which provides that a statement not made in oral evidence in the proceedings is admissible as evidence only if certain exceptions apply.
A regulatory decision will ordinarily be treated by other regulators in the same way as findings of fact made by a judge in civil proceedings (see Court Judgments). However, there is no good public policy reason why the respondent should not be able to challenge the accuracy of the findings of fact of the earlier tribunal (see Re a Solicitor  QB 69; Secretary of State for Education & Skills v Mairs).
Ian Hammond, Head of UK Dispute Resolution
Strategy, judgments and sequencing of events both inform and shape how a company should respond to inter-related proceedings. A flexible, rather than rigid, strategy toward pleadings will minimise the impact of a decisive judgment in one set of proceedings rendering the defence in another to be obsolete.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.