[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

• Introduction
• Criticism Of The Privilege In Civil Contexts
• Anton Piller Orders
• Conclusions

6 Civil Proceedings

INTRODUCTION

153 THIS CHAPTER LOOKS AT THE CASE for removing the privilege, together with other issues surrounding its application in civil proceedings.

154 Section 4 of the Evidence Act 1908 expressly preserves the privilege against self-incrimination for the parties to a civil suit. This does not limit the common law privilege’s availability to other witnesses in civil proceedings.

155 In New Zealand, the privilege against self-incrimination has long been recognised as an established ground for resisting civil discovery (Taranaki Co-operative Dairy Co Ltd v Rowe [1970] NZLR 895, 901).

156 However, in some proceedings of a civil nature, the privilege has been statutorily removed or restricted. For example, under s 70 of the Insolvency Act 1967, bankrupts and other people examined by the court or by the Official Assignee or a District Court Judge under the Act, must answer all questions relating to their business or property etc.

157 With the growth of statutory regulation, a wrongful act which attracts civil liability often additionally constitutes a criminal offence. Therefore, witnesses (usually defendants) in civil proceedings can sometimes claim the privilege in those proceedings because of the subsequent risk of criminal prosecution. Paradoxically, a defendant’s position may be improved if he or she is liable to criminal proceedings.[36] Another paradox is that, although the privilege exists in civil proceedings because of the risk to the witness of criminal prosecution, it is not generally available to criminal defendants once they choose to testify in the proceedings in which they are being prosecuted.

CRITICISM OF THE PRIVILEGE IN CIVIL CONTEXTS

158 The availability of the privilege, before and during civil proceedings, has been strenuously criticised, particularly in England. In A T & T Istel Ltd v Tully [1993] AC 45, Lord Templeman (for the majority) referred to the privilege in civil proceedings as:

an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff’s property or money. (35)

159 A T & T Istel concerned a Mareva injunction which required the defendant to disclose documents relating to the defendant’s dealings with the plaintiff’s money, despite the defendant’s claim of privilege. The House of Lords ordered compliance with the Mareva injunction, on the basis that there was unlikely to be a real risk of self-incrimination to the defendants in criminal proceedings as a result of disclosure. This was because para 33 of the disclosure order provided:

No disclosure made in compliance with [the order] shall be used as evidence in the prosecution of the offence alleged to have been committed by the person required to make that disclosure or by any spouse of that person. (55)

160 Additionally, a letter issued by the Crown Prosecution Service indicated that no use would be made of any disclosure in any subsequent criminal proceedings. This included a use fruits immunity prohibiting the admissibility of information discovered as a result of compliance with the order.

161 The reasons given by Lord Templeman for dismissing the application of the privilege in civil proceedings included the following:

• The defendant could not rely on the privacy rationale to prevent him disclosing his dealings because they were with the plaintiff’s money. Therefore, those dealings were the plaintiff’s as well as the defendant’s business (52).
• There was nothing improper or cruel in the threat of contempt of court which the defendant faced for refusing to comply with the order, and it was contrary to fair play for the defendant to prevent the plaintiff from recovering damages caused by the defendant’s wrongdoing (52).
• The privilege can be justified on only two grounds – discouraging ill-treatment of suspects and discouraging the production of dubious confessions. Neither of these considerations arises in civil proceedings. It is difficult to see any reason why the privilege should enable the defendant to refuse to produce relevant documents which speak for themselves (53).
• There is no reason why the privilege “should be blatantly exploited to deprive the plaintiff of its civil rights and remedies” if the privilege is not necessary to protect the defendant (ie, because of the use immunity contained in para 33, referred to above).

162 Lord Templeman may have been influenced by the report of the Lord Chancellor’s Department which recommended the abrogation of the privilege in civil proceedings and its replacement with a limited use immunity for incriminatory statements or admissions alone (Lord Chancellor’s Department, The Privilege Against Self-Incrimination in Civil Proceedings, London, 1992). The principal justification cited in the report for this approach was that the privilege places innocent parties in civil proceedings at a considerable disadvantage because of the criminal acts of others (6).

163 The Commission takes a different approach from that adopted in A T & T Istel and by the Lord Chancellor’s Department, in the following respects:

• Their Lordships appear to have assumed that only guilty parties benefit from the privilege in civil proceedings. However, the common law privilege can be claimed in civil proceedings by all witnesses, not just by parties. Witnesses may have committed no wrongdoing in relation to either of the parties, but nevertheless require the privilege’s protection.
• Their Lordships’ comments imply that every defendant who claims the privilege in civil proceedings is negligent or culpable. As already noted
  in chapter 2 of this paper, there may be several reasons consistent with innocence why a person may claim the privilege in a particular situation (eg, a desire to maintain privacy).
• Their Lordships’ observations do not take account of the point that a witness in civil proceedings may have more need of the privilege, or its statutory equivalent, than a defendant in criminal proceedings. This is because the criminal defendant will not be required to testify at all (Cotton, 164).
• Their Lordships refer to only two interests the privilege protects. For example, the privilege’s role in protecting the innocent and in maintaining a balance between the State and the individual is not mentioned. In addition, the two rationales accepted by them do not necessarily preclude the privilege’s application to all civil proceedings. Their Lordships’ comments refer to documents in existence before a demand for the supply of self-incriminating information was made. As is noted in chapters 2 and 8, the case for retaining the privilege for pre-existing documents is not compelling.
• In the absence of statutory regulation, protection approaching that provided by the privilege cannot be guaranteed in undertakings like those contained in the court order in A T & T Istel, discussed above. Such orders might not, in particular cases, provide immunity from use of information derived from the self-incriminating disclosures in the civil proceedings (eg, a use fruits immunity), nor immunity from liability for a civil penalty as distinct from for a criminal offence.
• When the State is one of the parties to the civil proceedings or attempts to obtain admissions of criminal offending from the defendant, the interests represented by the privilege – of maintaining a balance between the State and the individual – will be relevant.
• As already noted, in New Zealand, s 23(4) of the Bill of Rights Act (right of arrested or detained person to refrain from making a statement) and s 27(1) (right to observance of the principles of natural justice) might encompass the privilege in some civil contexts.
• Finally, as the discussion of the privilege’s history in chapter 1 indicates, far from being a relic, the privilege has shown itself to be an evolving and adaptable common law rule.

164 The Commission’s view is that broad context (ie, civil or criminal investigations or proceedings) should not alone determine the privilege’s availability in any given case. The risk of self-incrimination in the particular circumstances should be taken into account.

ANTON PILLER ORDERS

165 In civil proceedings, the privilege has generated particular criticism when it has been used to thwart Anton Piller orders. Anton Piller orders originally raised no real argument concerning self-incrimination. This was because the party on whom the order was served was not required to actively disclose anything. The documents etc already existed and awaited discovery through a search, as when incriminating articles are located and seized under a search warrant. Difficulties arise from comparatively recent widening of the order to include a further direction that there be a disclosure of information and documents which would not necessarily be found by the search alone. The forced disclosure of information and documents can in some instances serve to incriminate the party who is the subject of the order. In the normal course of civil proceedings, such a possibility of self-incrimination would be a valid reason to resist the order for discovery (Taranaki Dairy Co Ltd, 895).

166 Although Anton Piller orders began as a remedy for cases involving intellectual property, they have now been used more widely in civil litigation. Some disquiet has been expressed that these orders are being granted too readily when the normal avenues of discovery should have been pursued (eg, see Columbia Picture Industries Ltd v Robinson [1986] 3 All ER 338). Surprise is the essence of an Anton Piller order and the defendant suddenly confronted with such an order is placed in a vulnerable position, with none of the legislated protections of a criminal search warrant (for those, see s 198 Summary Proceedings Act 1957).

167 In the English case Rank Film Distributors Ltd v Video Information Centre [1982] AC 380, 424, the House of Lords reluctantly held that the privilege was available to prevent discovery and interrogatories under Anton Piller orders, and said that abrogation was a matter for Parliament.[37] The result was that Anton Piller orders were largely ineffective because invocation of the privilege could eliminate the plaintiff’s capacity to act quickly to prevent the removal, destruction or concealment of important evidence. In that case, the plaintiffs obtained an Anton Piller order permitting them to enter the defendants’ premises and seize infringing copies of the plaintiff’s films, and requiring the defendants to immediately produce documents and answer questions about the supply and sale of the infringing copies.

168 In s 72 of the Supreme Court Act 1981 (UK), Parliament quickly reversed the position, at least in the limited area of intellectual property infringement. Section 72 provides that the privilege cannot be invoked in civil proceedings for intellectual property infringement or passing off, but the statements elicited are inadmissible against the maker in proceedings for a related offence. The use immunity provided does not extend to documents.

169 The New Zealand Court of Appeal’s decision in Busby v Thorn EMI Video Programmes Ltd [1984] 1 NZLR 461 contrasts with the narrow statutory use immunity contained in s 72 of the Supreme Court Act. The court dealt with the self-incrimination objection to compliance with an Anton Piller order by directing that any information or documents which the party was required to produce and which were incriminating were not admissible “in any criminal proceeding for any offence relating to the subject matter of the action in which the order ha[d] been made.” Additionally, the parties seeking disclosure were required to give an undertaking not to use the material in any criminal proceedings nor to make it available to the police.

170 In chapter 8, the Commission has proposed that the privilege should not be able to be claimed for documents already in existence when a demand for their production is made. If this proposal is implemented, the privilege would not be claimable in response to Anton Piller orders for the seizure of documents. However, the person upon whom such an order is served would still be able to invoke the privilege if asked to make self-incriminating oral statements about anything seized.

171 In chapter 2, we considered ways in which claiming the privilege can forestall abuses of power by investigators. Conceivably, the privilege might also have a role in preventing the arbitrary exercise of Anton Piller orders in relation to demands for oral information.[38]

CONCLUSIONS

• The privilege should not be removed across the board in all civil proceedings.
• The degree and risk of self-incrimination varies depending on the particular situation.
• A person compelled to make self-incriminating disclosures in one context can be unfairly prejudiced in another as a result.
• Witnesses who are not parties in civil proceedings benefit from the privilege as well as parties who have an interest in escaping accountability for their negligent or culpable actions or omissions. In addition, the parties in civil proceedings are not always negligent or culpable. Therefore, it is incorrect to suggest that the privilege only protects wrongdoers in civil proceedings.
• A witness in civil proceedings may have more need of the privilege, or its statutory equivalent, than a defendant in criminal proceedings. This is because the criminal defendant will not be required to testify at all, although once a criminal defendant chooses to testify, he or she cannot claim the privilege for matters in issue in the proceedings.
• In the absence of statutory regulation, protection approaching that provided by the privilege (ie, a use and use fruits immunity extending to actions potentially involving the imposition of a civil penalty) cannot be guaranteed.
• The interest in maintaining a fair State-individual balance may be relevant in some civil proceedings (eg, when the State is one of the parties or when its representatives become interested in the proceedings for the purposes of a criminal prosecution).
• Section 23(4) of the Bill of Rights Act 1990 (right of arrested or detained person to refrain from making a statement) and s 27(1) (right to observance of the principles of natural justice) encompass the privilege in some civil contexts.
• Far from being a relic, the privilege has shown itself to be an evolving and adaptable common law rule.
• The privilege should not be able to be claimed by a person upon whom an Anton Piller order has been served, in relation to the production of documents already in existence. The privilege should still be claimable in response to demands for oral information. This is consistent with the position the Commission takes in chapter 8.