The House of Lords (Lord Griffiths dissenting) allowed an appeal by the plaintiffs from the Court of Appeal's decision ((1992) 1 QB 315; The Independent, 22 November 1991) that compliance by the defendants, Arthur Tully and Margaret Tully, of an order for discovery would infringe their privilege against self-incrimination and restored an order requiring the defendants to disclose certain information.
The first plaintiff bought the second plaintiff company which had been controlled by Mr and Mrs Tully and which had provided computer services to a health authority. The first plaintiff discovered that the service contract had been fraudulently operated. The matter was under police investigation but no charges had been laid. The first plaintiff commenced an action against, among others, Mr and Mrs Tully, alleging a large commercial fraud.
Mr Justice Buckley made an order for discovery against Mr and Mrs Tully for disclosure of their dealings and documents relating to the second plaintiff. The order was subject to the condition that no disclosure made should be used as evidence in the prosecution of an offence alleged to have been committed by the person required to make the disclosure.
Mr Justice Wright allowed Mr and Mrs Tully's appeal against the order on the ground that compliance with it would infringe their privilege against self-incrimination since the condition could not bind the Crown Prosecution Service. The Court of Appeal upheld Mr Justice Wright's decision. The CPS decided not to take part in the proceedings. In a letter they accepted that the order restricted them in any prosecution to utilising material they had already obtained or other material obtained independently of that disclosed under the order.
Michael Tugendhat QC and Richard Spearman (Taylor Joynson Garrett) for the plaintiffs; Alan Rawley QC and Jeremy Gibbons (Lawrence Graham for Dutton Gregory & Williams, Eastleigh) for Mr and Mrs Tully.
LORD TEMPLEMAN said that it was difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents in his possession or power and which spoke for themselves. The principle against self-incrimination exercisable in civil proceedings was an archaic and unjustifiable survival from the past.
Parliament had recognised in a piecemeal fashion that the privilege was unsatisfactory when no question of ill-treatment or dubious confessions was involved and had been willing to abrogate or modify the privilege: see section 31 of the Theft Act 1968, section 72 of the Supreme Court Act 1981 and section 434 of the Companies Act 1985.
The present proceedings were not covered by any of the statutory relaxations of the privilege but they were similar to and analogous to situations in which Parliament had intervened.
Since Parliament had not abolished the privilege the Tullys would be entitled to rely on it if but only if and so far as compliance with Mr Justice Buckley's order would provide evidence against them in a criminal trial. There was no reason why the privilege should be blatantly exploited to deprive the plaintiffs of their civil rights and remedies if the privilege was not necessary to protect the Tullys.
In view of the letter from the CPS, compliance with Mr Justice Buckley's order with the safeguard provided by the condition of that order would not create any real danger that the Tullys would be prejudiced in criminal proceedings. Mr Justice Buckley's order should be restored.
LORD JUSTICE GRIFFITHS, dissenting, said that Mr and Mrs Tully, by producing documents in this civil action, could safely resist their use if the police subsequently acquired them independently from some other source. Only if the CPS letter was written by or with the direct authority of the DPP or the Director of the Serious Fraud Office would his Lordship feel assured that there was no risk that the criminal law would be impeded.
LORD ACKNER said that if the privilege against self-incrimination was to be abolished or abridged, then that must be done by Parliament.
The Tullys were sufficiently safeguarded in the circumstances of this case. The courts were entitled to substitute some different protection in place of the privilege against self-incrimination providing that such protection could properly be considered as adequate protection.
Not only must the prosecuting authorities have notice of the proposed order but they must unequivocally agree not to make use, directly or indirectly, of material divulged as a result of compliance with the order. It must remain entirely a matter for the discretion of the prosecuting authorities as to whether they were in a position to and were prepared to give an assurance. Without such an assurance the court would not be able to provide a substitute protection which was adequate.
LORD GOFF agreed with Lord Ackner.
LORD LOWRY said that real problems for the DPP could be foreseen if they were expected to join in applications or to provide undertakings or letters for the purpose of facilitating parties in complex civil proceedings. It was necessary for Parliament to give the problem its urgent attention.
Ying Hui Tan, Barrister