A variety of procedural mechanisms are available to the Court to mitigate the challenges faced by a party in parallel proceedings.
What are these mechanisms, and how are they applied in practice?
A party can face significant challenges in defending parallel or consecutive civil, criminal or regulatory proceedings, including:
- differences in the legal and procedural rules applicable to each of the proceedings
- the strategic impact of co-operating with criminal or regulatory investigations
- the need to comply with their duties as a party to civil proceedings
- increased demands on resources
- the existence of multiple sources of relevant and potentially disclosable material, some of which may be subject to restrictions
- difficulty accessing key individuals, including witnesses
- the possibility that an earlier trial and/or judgment on one of the proceedings influences the hearing of another, and
- extensive and prolonged media coverage.
The impact of these challenges is typically not so severe as to render one or more of the proceedings abusive, and thus vulnerable to strike out by the court.
In serious cases, however, these difficulties may justify the intervention of the court to stay or adjourn one of the proceedings until another has reached its conclusion.
More often the court may be persuaded to impose procedural safeguards or protective orders to mitigate any undue prejudice faced by the defendant as a consequence of being party to multiple actions, and to ensure that effective justice can be delivered in each.
- Abuse of process
It may seem unfair for a party to be faced with multiple parallel actions which could result in several different penalties or orders for damages for effectively the same conduct. However, this situation generally does not constitute an abuse of the Court’s process justifying a strike out or permanent stay of one or more of the proceedings.
No rule of double jeopardy applies to protect a defendant who has been convicted or acquitted of a criminal offence from also being subject to regulatory and civil proceedings related to the same charge. This is due to differences in:
- the aims and purposes of the proceedings:
- criminal proceedings aim to punish those who breach the criminal law, and deter others from committing similar offences
- regulatory proceedings seek to protect the public and maintain the high standards and good reputation of a profession, and
- civil proceedings provide remedies for damage suffered by private parties.
- the standard of proof applied (though some regulatory tribunals, such as the Solicitors Disciplinary Tribunal apply the criminal standard)
- the rules of evidence followed
- the way in which judicial discretion may be exercised, and
- the sanctions that may be imposed - the liberty of a respondent to regulatory or civil proceedings is not at stake.
Notwithstanding the above, abuse of process arguments may be available to defend parallel proceedings in certain limited circumstances; most notably where multiple actions are pursued by the same party or parties.
For example, the doctrine of res judicata prevents parties from re-litigating issues decided in one set of civil proceedings in subsequent civil proceedings. The effect of res judicata is narrow because it applies only to the same parties to the original action, or those with sufficient identity of interest with those parties (their “privies” – this is an exacting test as in Resolution Chemicals v Lundbeck). However, the wider doctrine of abuse of process may prevent a party from mounting a ‘collateral attack’ on a Court decision by contesting issues previously decided in civil proceedings to which it was a party, in subsequent proceedings against a different party (Al-Hawaz v Thomas Cook1. This doctrine not only prevents a party from re-opening previously decided issues, it also applies to issues which a party could have but did not raise in the earlier proceedings (Johnson v Gore Wood).
Theses doctrines have also been applied in the context of regulatory proceedings. In Baxendale-Walker v Middleton & Others the Court found an abuse of process where civil proceedings had been initiated to mount a collateral attack on a decision of the Solicitors Disciplinary Tribunal. The same principles would apply to prevent the same complaint being adjudicated on by a second regulator (Mandic-Bozic v (1) BACP, (2) UKCP).
Abuse of process arguments may arise in the criminal context where a prosecution has been brought against a defendant by a private party rather than the state. Private prosecutions (as they are known) are increasingly common in the UK and it is not unusual, particularly in economic crime cases, for such an action to be brought or threatened in circumstances where civil proceedings between the same parties - relating to the same or similar facts - are anticipated or ongoing.
A key question in this scenario is whether there is an improper motive for the prosecution; a prosecution purely motivated by bad faith, spite or some other "oblique" motive can be stayed by the Court (which in a criminal context results in the termination of proceedings) as an abuse of process.
A defendant may challenge a private prosecution if it can demonstrate that the action is solely motivated by a desire to add pressure to it in civil proceedings, leverage the claimant’s position in those proceedings or otherwise influence them (being purposes which the criminal process is not designed to achieve). This can be difficult, however, as the Courts have accepted that a prosecutor (often also the victim of the alleged offence) may have mixed motives in pursuing an action, including personal and/or ulterior motives (R (Dacre) v City of Westminster Magistrates’ Court).
See also R (G) v S and S2 in which the Court rejected the defendants’ application to stay a private prosecution as on the basis that it was being used to exert additional pressure on the respondents to pay a debt in a linked civil case.
1  10 WLUK 763
2  EWCA Crim 2119.
- Seeking a stay
The Court has a discretionary power to order a stay of civil proceedings under its inherent jurisdiction and case management powers (CPR Rule 3.1(f)).
There is also a separate provision under paragraph 11A of Practice Direction 23A which allows a party to make an application to stay civil proceedings on the basis that there are related criminal proceedings. However, it is a jurisdiction that is exercised very sparingly, and a stay will only be granted if specific criteria are met.
- a sufficient overlap between the issues in the criminal prosecution and the civil litigation; it is not sufficient that both the civil and criminal proceedings arise from the same facts (Akcine Bendrove Bankas Snoras (In Bankruptcy) v Antonov)
- a real and not merely notional risk of serious prejudice which may lead to injustice to the applicant (citing R v Panel on Takeovers and Mergers, ex p Fayed3)
- that the balance of the competing considerations between the parties lies in favour of the applicant, who bears the burden of demonstrating why the claimant’s right to have his civil claim decided should be delayed (Panton v Financial Institutions Services Limited  UKPC 86 (PC)), and
- that it is not possible to sufficiently mitigate the risk of prejudice to the applicant by imposing appropriate procedural safeguards.
See Utilising procedural mechanisms: Protective orders for further details.
Arguments which are likely to be persuasive to the Court in granting a stay of civil proceedings include that the hearing and judgment risks contaminating the jury or any witnesses giving evidence in subsequent criminal proceedings.
The Court may also be persuaded by the burden placed on the financial resources, time and attention of the defendant arising from fighting multiple fronts.
As with civil proceedings, the Court has the power to order a stay or adjournment of criminal proceedings where to allow them to continue would seriously prejudice other proceedings (see R v The Panel on Take-overs and Mergers ex parte Fayed4). That said, we are not aware of any instances where criminal proceedings have been stayed in favour of civil proceedings. This is likely a consequence of the overriding public policy principle that it is in the public interest that prosecutions of offences proceed.
It is possible that criminal proceedings might be stayed as an abuse of process following serious prejudice caused by ongoing civil proceedings where that litigation has attracted a level of media attention so as to prevent the criminal proceedings from being fair.
For such application to be granted, however, it would be necessary to demonstrate that the risk of prejudice to the criminal proceedings is so high that no matter what measures are adopted, the risk cannot be reasonably removed. This threshold is extremely high and likely to be unavailable in most cases. This observation is reinforced by the fact that the Court appears reluctant to grant stays even in instances of concurrent criminal proceedings. Instead, the Court has favoured implementing safeguards to prevent contamination between the concurrent criminal proceedings.
The Courts have suggested that the criteria for granting a stay of civil proceedings where there is a related criminal prosecution (considered above) should equally apply where a stay of regulatory proceedings is sought.
There have also been occasions where the Courts, through applications for judicial review, have compelled a stay of regulatory proceedings pending the outcome of civil proceedings. In that scenario also, the Court will consider similar principles to those which apply where a party seeks to stay civil proceedings in favour of parallel criminal proceedings, with one additional significant (though not overriding) factor - the importance of regulatory proceedings in protecting the public, upholding professional standards and maintaining confidence in the relevant profession.
A regulator may also voluntarily defer taking action in favour of civil proceedings if those proceedings are more likely to arrive at the truth or will get there more expeditiously, and/or in view of the possibility that further evidence may emanate from those proceedings and become available to the regulator. However, this is likely to be desirable only in the rarest cases.
3  BCC 524
4  BCC 524
- Protective orders
There are a number of tools available to the Courts and Tribunals who hear civil, criminal or regulatory proceedings to mitigate any prejudice that those proceedings may cause to other ongoing proceedings.
For example, it is possible to:
- vary the timetable for the proceedings so that the parties do not bear the burden of preparing for and attending multiple overlapping or closely scheduled hearings
- hear all or part of the proceedings in private, including the giving of witness evidence
- refuse to allow any hearing or part of a hearing to be recorded or transcribed
- give case management directions restricting the use/dissemination of evidence and disclosed material beyond the standard rules against collateral use of documents, including orders that certain documents or information will not be disseminated beyond a limited number of named individuals without the prior leave of the Court
- restrict or embargo the publication of its judgment or decision until after the conclusion of the related proceedings, or make an order but withhold the reasons for the decision
- anonymise or redact references to the defendant and/or witnesses in any judgments, transcripts or orders;
- restrict third party access to documents on the Court file, and
- restore the protection of the implied undertaking against collateral use to documents referred to in open Court (to which it does not usually apply), where there is a concern that sensitive documents may be used in other proceedings.
Parties may also be expected to take such steps as are within their control to mitigate the risk of prejudice or contamination of other ongoing proceedings.
Adam Brown, Managing Associate
Navigating the procedural mechanisms effectively can make the difference between one set of proceedings compromising the other. The nuances are complex – indeed, occasionally counterintuitive – particularly where the rules of law and judicial discretion intersect.
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.