Parallel Investigations and Litigation

Abstract

Parallel investigations and litigation occur quite commonly. Investigations are frequently lengthy in areas of financial crime, where months can be spent building evidence. Within this period, civil litigants can easily commence an action. The main problem in this situation is when and how much disclosure should take place and to whom. Disclosure in one set of proceedings may be detrimental to another or to an ongoing investigation. For example, a defendant may not wish to disclose certain information in civil proceedings, as it would be detrimental to his criminal trial. However, these documents may be the best way of preventing the civil action from succeeding against him. Thus, the defendant must choose between a successful civil outcome and a possible or even probable criminal conviction. The same predicament faces the prosecution authorities who may risk a certain victory in one set of proceedings against the possibility of revealing a source or prejudicing an ongoing investigation. A variation is where a criminal investigatory body requests non‐disclosure to the defendants in a civil trial to prevent prejudicing a criminal investigation. The Court of Appeal encountered this problem in C v S and others.