The defendant faced an application for summary judgment and also a criminal investigation and possible criminal proceedings in respect of the same matters. He said that to provide a detailed defence to the claim he would have to give information that would or might assist a prosecution, and that to proceed with summary judgment would require him to ‘buy’ his right not to incriminate himself at the price of having judgment entered against him, or to forgo that right with the attendant risks to the criminal process under way against him.
Held: The privilege against self-incrimination was a privilege against being compelled on pain of punishment to provide evidence or information, and the privilege did not give rise to a defence in civil proceedings or to a right not to plead a defence in civil proceedings. As to whether there should be a stay to avoid prejudice to the summary trial, it was a matter of discretion and the judge’s decision to proceed with the application for summary judgment and to give summary judgment could not be successfully impugned. There is no right to silence in civil proceedings. If a defendant had a positive defence, the criminal law now expected him to raise it at an early stage if there was to be no danger of adverse inferences being drawn or adverse comment made; so that disclosure of a defence in civil proceedings was unlikely to disadvantage a defendant in criminal proceedings. It was legitimate to start from the position that a positive defence was likely to exculpate rather than incriminate; and the judge was entitled to take into account that the defendant had chosen not to provide any answer to the claimant’s allegations. The reasoned judgment would be available to the prosecuting authorities, but it was fanciful to say that it would be used by the prosecutor. The fact of judgment did not take them any further than the assertions in the points of claim. Finally, there was no risk of a potential juror being affected by publicity.
Lord Justice Brooke, Lord Justice Waller, Lord Justice Longmore
 EWCA Civ 1509
England and Wales
Cited – Paxton v Douglas 1812
‘In no stage of the proceedings in this court can a party be compelled to answer any question, accusing himself, or any one in a series of questions, that has a tendency to (incriminate . . .)’ . .
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.166652