England and Wales High Court (Chancery Division) Decisions

"The privilege against self-incrimination is so deeply entrenched in our law that any decision to curtail it or make it not available is essentially a political decision, and a matter for Parliament."

"In this case an indictment was pending, against the Defendant for perjury committed in the cause; and, on Mr. Cole, for the Plaintiff, moving for the production of documents which the Defendant had admitted in his answer to be in his custody, Mr. Chandless contended that he was not bound to produce them, because they tended to support the indictment; and cited Paxton v. Douglas (1809) 16 Ves 239. The Vice-Chancellor[Sir L Shadwell] said that in the case cited, the offence was committed prior to the institution of the suit; but, in the present case, it was committed in the very cause in which the motion was made; and that, if he were to refuse the motions, he should be holding out an inducement to a Defendant to commit perjury in an early stage of the cause, in order to prevent the Court from administering justice in the suit. Motion granted." (Shadwell V-C's emphasis.)

"Counsel's narrow submission is advanced in support of a suggested ad hoc exception to the privilege which would cover the circumstances of the present case. He drew our attention to a number of nineteenth century decisions of English and Irish courts where ad hoc exceptions to the privilege were upheld. The following are the cases referred to, set out in chronological order: Mayor and Citizens of London v Levy (1802) 8 Ves 398, 32 ER 408, Green v Weaver (1827) 1 Sim 404, 57 ER 630, Attorney General v Daly (1833) Hayes & Jo 379, Attorney-General v Conroy (1838) 2 Jo Ex Ir 791, Rice v Gordon (1843) 13 Sim 580, 60 ER 225, Chadwick v Chadwick (1852) 22 LJ Ch 329, Robinson v Kitchin (1856) 8 De GM & G 88, 44 ER 322, Bunn v Bunn (1864) 4 De GJ & Sm 316, 46 ER 941.

I do not refer to these cases in detail for the reason that I found it impossible to derive any significant assistance from them. The reasoning of the judgments is often terse and difficult to follow. Counsel for the plaintiffs was the first to concede that it was impossible to derive from these cases any coherent underlying principle by which to distinguish the exceptional case where the privilege is not available from the normal case where it is. The furthest one can go is to say that they indicate a willingness on the part of nineteenth century judges to override the privilege when to allow it would defeat the justice of the case. None of these cases appears to have been followed for over a hundred years. It seems to me very much open to doubt whether the privilege against self-incrimination at the time of these decisions had yet come to be recognised as one of the 'inveterate principles of English law' to which Bowen LJ referred in 1891 (Redfern v Redfern [1891] P 139 at 147,[1886–90] All ER Rep 524 at 528). Nor is it without significance that the first five of the eight cases referred to were decided before the important decision of 12 judges in R v Garbett (1847) 2 Car & Kir 474, 175 ER 196 affirming the privilege. In the last three cases listed Garbett's case was not cited. I regret that I am quite unable to accept an exception to the privilege against self-incrimination based on the principle formulated in the judgment of Lord Denning MR that 'the court will not allow the defendant the benefit of the privilege when to do so would enable him to take advantage of his own fraud or other wrongdoing so as to defeat the just claims of the plaintiff in a civil suit'. A principle so widely stated, so far from establishing a limited exception to the privilege, could be invoked by a plaintiff seeking discovery from a defendant so as to negate the privilege in every case"

"In my judgment the authorities cited by counsel do not enable this court to evolve a general or special exemption which deprives the defendant of his privilege to resist discovery in order to assist the plaintiff against third parties, if that privilege is justified by the accepted principle that no man shall be compelled to incriminate himself.

Apart from the authorities, it seems to me that the solution suggested would destroy the privilege accorded to a defendant in a civil action. Where a defendant in a civil action relies on the doctrine against self-incrimination and insists on remaining silent and on concealing documents and other evidence relevant to the action, he is relying on his own wrongdoing or on his own apparent or possible wrongdoing to hamper the plaintiff in the proof of his just claims in the suit. That is the inevitable result of the doctrine which can only afford protection of the defendant at the risk or price of causing an injustice to the plaintiff. That injustice is an argument against the whole doctrine as applied to discovery and interrogatories in civil actions. It is not an injustice which is acceptable in relation to some causes of action but not others."

"In every case in which a defendant is faced with possible self-incrimination as a result of discovery or interrogatories and especially where the tort and the crime are constituted by the same activity, the defendant has a choice. The defendant may choose to rely on the silence and concealment afforded by the doctrine against self-incrimination in order at one and the same time to hamper the plaintiff in the proof of his civil action and as a means of resisting or avoiding criminal prosecution or conviction. Alternatively the defendant may abandon his defence to the civil action in which case he will be immune from discovery and interrogatories and will not need to rely on the doctrine against self-incrimination unless and until he is confronted with an inquiry as to damages. Failure to defend the civil action will not prejudice the defendant in any criminal proceedings. Alternatively again, if a defendant wishes to maintain a plausible defence to the civil suit, he will waive the privilege and give frank answers to interrogatories and full discovery.

The plaintiff is not wholly or necessarily defeated and the defendant is not necessarily assisted by the defendant relying on the privilege against self-incrimination. The civil court may draw conclusions where a criminal court may not. If the privilege is raised in connection with an inquiry as to damages the court will be driven to draw conclusions as to the scope of and harm caused by the defendant's activities and, in the face of silence and concealment on the part of the defendant, will not be slow to make assumptions and draw inferences which will enable damages to be awarded on a scale which will do justice to the plaintiff. If in the event damages are more generous than would have been the case if the defendant had answered all the interrogatories and afforded full discovery, the defendant can hardly complain.

The disadvantages which attach to a defendant who relies on the privilege accorded by the doctrine against self-incrimination explain the absence of reliance on that doctrine in the past in connection with copyright proceedings. A plaintiff in copyright proceedings was and is no better and no worse off by reason of the doctrine against self-incrimination than a plaintiff in any other proceedings in so far as the plaintiff seeks to establish the defendant's liability and to obtain an injunction against the defendant and a proper measure of damages."

"There was, however, one further matter of law to which I must refer. The Rank Film Distributors case was argued in the House of Lords in March 1981: see [1981] 2 All ER 76, [1981] 2 WLR 668. The issue was the existence of the privilege against self-incrimination where the Anton Piller type of order has been made. The Court of Appeal had decided that the court should abstain from making an order ex parte requiring immediate answers to interrogatories or disclosure of documents when it can see that the defendant would be in danger of self-incrimination, and all requirements to answer those interrogatories or to disclose documents were deleted from the order originally made at first instance. The appeal was dismissed and the House of Lords held that the privilege against self-incrimination was capable of being invoked.

In the present case there was prima facie evidence before me that it might be alleged that the respondent husband had committed perjury. I, therefore, had to consider whether some provision should be made in the order to protect him against self-incrimination. I was referred to Rice v Gordon (1843) 13 Sim 580, 60 ER 225. The report of this case, which was decided in November 1843, is very short and I set it out in full:

That case was cited by Templeman LJ in the Rank Film Distributors case without criticism (see [1980] 2 All ER 273 at 290, [1980] 3 WLR 487 at 518). In the present case the only possible criminal offence that is disclosed is the prima facie evidence of perjury, and in the circumstances I did not require any special clause to be inserted in the order to encourage the respondent husband to invoke the principle of privilege against self-incrimination."

"In the present case there is no suggestion that the second defendant has been, or is, in peril of criminal proceedings unless it were (a) under the Theft Act 1976 or (b) such as might be brought by the Department of Trade or (c) for perjury in respect of his answers in oral examination. As to (a), s 31(1) of the Act itself deprives the second defendant of the benefit of the excuse. As to (b), the visit to the defendants' premises, which gave rise to the possibility of proceedings, occurred some time ago but has not resulted, so far as is known, in any charge being preferred against either defendant. And, as to (c), since any perjury by the second defendant would have been committed in this cause itself, a plea of self-incrimination would not avail him: see Emanuel v Emanuel [1982] 2 All ER 342 at 349,[1982] 1 WLR 669 at 677."

"This case raises questions of some importance. Mr Sparrow [Counsel for the plaintiffs] submitted that in proceedings of this kind the defendant can be compelled to give evidence even against himself. Mr Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the court in a civil action.

I cannot accept counsel's submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yianni, so decided; and furthermore we ourselves in this court, in Re Bramblevale Ltd, said that it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528:-

This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a plaintiff was entitled to deliver interrogatories to the defendant, which the defendant was bound to answer on oath. In his Commentaries (18th Edn, 1829, Bk4, page 287) Sir William Blackstone said that:-

and he went on to say at page 288:-

I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him provide his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him."

"THE PRIVILEGE AGAINST SELF-INCRIMINATION

It appears from Holdsworth's History of English Law vol 9 (3rd edn, 1944), esp at p 200 that the privilege, and the maxim nemo tenetur prodere se ipsum, became established in the common law after the abolition of the Court of Star Chamber by the Long Parliament. In Hammond v Commonwealth of Australia (1982) 152 CLR 188, a decision of the High Court of Australia, Murphy J (at 200) refers to the privilege against self-incrimination as part of our legal heritage, where it became rooted as a response to the horrors of the Star Chamber, while Brennan J (at 203), after stating that the privilege is a principle deep-rooted in our law and history, cites from an opinion of the Supreme Court of the United States in Brown v Walker (1896) 161 US 591 at 596–597:

It had become thus embedded in English jurisprudence well before the beginning of the nineteenth century, not least in the Chancery Division, which was particularly concerned with the discovery of documents in civil proceedings.

Thus in Smith v Read (1736) 1 Atk 526 at 527, 26 ER 332 Lord Hardwicke LC said:

So, in Parkhurst v Lowten (1819) 2 Swan 194 at 214, 36 ER 589 at 595 Eldon LC refers to—

So, in Orme v Crockford (1824) 13 Price 376 at 388, 147 ER 1022 at 1026 Alexander CB referred to the right of a person to protect himself, by refusing to answer, from the consequence of answering questions which might tend to charge him with a crime or subject him to penalties or forfeiture of estate, as 'a most important right'. He added (13 Price 376 at 389, 147 ER 1022 at 1026):

Much more recently Lord Griffiths in Lam Chi-ming v R [1991] 3 All ER 172 at 176, [1991] 2 AC 212 at 222 refers to the privilege against self-incrimination as deep-rooted in English law.

Also, in Rank Film Distributors Ltd v Video Information Centre [1981] 2 All ER 76 at 81, [1982] AC 380 at 442 Lord Wilberforce says of the privilege against self-incrimination:

He had said earlier ([1981] 2 All ER 76 at 79, [1982] AC 380 at 439):

"Green v Weaver

The facts of Green v Weaver (1827) 1 Sim 404, 57 ER 630, as I understand them, were simple. The plaintiff instructed the defendants, a firm of wool-brokers in the City of London, to buy foreign wool for him, in the belief that all the partners in the firm were duly qualified to act as brokers. It was of some importance to him to know who the sellers were of the wool which the defendants claimed to have bought for him, and he came to suspect that the information given him by the defendants as to the sellers was false and that the transactions were fraudulent. He therefore sought discovery of their dealings for him against the defendants. In fact, however, two of the three partners in the defendant firm were not qualified to act as brokers, as they had not entered into appropriate bonds with the City authorities, and if they were shown to have acted as brokers without being duly qualified they would be liable to penalties by statutes. The defendants therefore refused to give discovery or any further information, and relied on the privilege against self-incrimination.

Hart V-C held that they could not rely on the privilege. In a full judgment, he set out that it was undeniable that the rule of a court of equity was that a man should not be compelled to answer to any facts which might tend to criminate him or subject him to penalties or forfeitures; but he went on to say that the due application of the rule to the circumstances of individual cases had been a matter of much controversy (see 1 Sim 404 at 426, 57 ER 630 at 638). He was concerned that if he ordered the defendants to answer, his decision might be inconsistent with the doctrine laid down by great judges in former cases, but, on the other hand, if he upheld the defendants' privilege he might render Acts of Parliament especially framed for the purpose of protecting principals from the dishonesty of their agents, a cover to their agents in the grossest and most scandalous frauds.

He then deduced from the authorities, to which I need not refer (but which it is suggested in a footnote in Bray on Discovery (2nd edn, 1910) p 338 he may have misunderstood), that a man by contract or the effect of his own acts may exclude himself from the benefit of the privilege against self-incrimination. He then equated, in the eyes of a court of equity, the moral obligation of a confidential agent to give discovery to an obligation resulting from a stipulation by deed (see 1 Sim 404 at 432, 57 ER 630 at 640). He stressed, as a justification of the decision on moral grounds, that the plaintiff as employer had no reason to suspect, and no means of detecting the misrepresentation of the fact whether the defendants were or were not duly constituted legal brokers.

Green v Weaver is undoubtedly a case, as is the present, in which it sticks in the gullet that a defendant should, in the circumstances, be entitled to rely on the privilege against self-incrimination. But that is inherent in the paradox of the privilege, as stated by Lord Wilberforce.

In contrast to Green v Weaver, we were referred to a judgment of Lord Langdale MR in Lee v Read (1842) 5 Beav 381, 49 ER 625, where he seems to say that a party cannot by any agreement deprive himself of the protection of the privilege against self-incrimination. But that is in an extempore judgment on a point on which authority had not been cited and is founded merely on an unnamed case which the judge thought he remembered. It cannot therefore carry much authority, especially in the face of Robinson v Kitchin (1856) 8 De GM & G 88, 44 ER 322."

"The subsequent law

So far as I am aware, Green v Weaver and Robinson v Kitchin are not referred to in any modern textbook, and have not been referred to judicially in any case since they were decided, except for the references in the Rank Film case in this court and the decision of Browne-Wilkinson V-C in Tate Access Floors Inc v Boswell [1990] 3 All ER 303, [1991] Ch 512. In the Rank Film case Templeman LJ left open, as I have said, whether the proposition he derived from Green v Weaver was now good law or not. In Tate Access Floors Inc v Boswell Browne-Wilkinson V-C held that the cases did not establish the wide proposition that where a defendant agrees to act as a fiduciary he impliedly contracts not to raise the claim to the privilege against self-incrimination in any case brought by his principal to enforce the fiduciary duties and he doubted whether the two cases are good law today.

I do not find it necessary to consider whether the law does or does not permit a party to make an express contract with another party that the former will not rely on the privilege against the other in relation to any of their dealings. The difficulty I have is over the leap made by Hart V-C from that to the position that a party cannot rely on the privilege where there is no such express contract—unless the explanation of Green v Weaver is the form of estoppel as to the position held by the party, the validity of which we do not have to consider in the present case.

If Green v Weaver purported to lay down the wide proposition which Browne-Wilkinson V-C rejected, it seems to me, as it did to him, inconsistent with the formulation of the law by Lord Eldon LC in the earlier case of Parkhurst v Lowten (1816) 1 Mer 392, 35 ER 718 (1819) 2 Swans 194, 36 ER 589; subsequent proceedings and also, I would add, by Lord Eldon LC in Paxton v Douglas (1809) 16 Ves 239, 33 ER 975. That is one of the dangers Hart V-C mentioned, and, in my judgment, he fell into it if his decision is to be widely interpreted.

In addition, as the privilege against self-incrimination was so firmly entrenched in English law before Green v Weaver, I do not see how it could have been open to Hart V-C to carve such a substantial exception out of the privilege, consistently with the rejection by the majority of this court in the Rank Film case of the proposition that the court would not allow the defendant the benefit of the privilege when to do so would enable him to take advantage of his own fraud or other wrongdoing; if it is not permissible to make an exception on a case-by-case basis on such a ground or on the ground that to uphold the privilege would do too great a disservice to justice, it cannot be permissible to make a new and wide class exception on a like ground to cover an individual case.

There is the further point that if Mr Falconer's proposition is valid, founded on Green v Weaver and Robinson v Kitchin, the considered and, in my respectful view, cogent judgments of this court in the Sonangol case [1990] 3 All ER 283, [1991] 2 QB 310 would have to be rejected as decided per incuriam. The facts of that case cry out for the application of Mr Falconer's principle, if it is valid.

Finally, the limits of Mr Falconer's proposition are not at all clear. Mr Falconer seeks to limit it—no doubt because he puts it forward on the basis of an implied contract—to cases where the fiduciary relationship or relationship of master and servant or principal and agent came into being before the conduct of which an account is sought in the proceedings. He says that the proposition should not extend to a person who voluntarily and without any prior contract assumes a fiduciary position or other position in which he is accountable in equity; such a person could rely on the privilege against self-incrimination. But in equity the trustee de son tort, or person who becomes a constructive trustee by knowing participation in the fraudulent conduct of a fiduciary, is just as much accountable and on substantially the same principles as the express trustee or the fiduciary, servant or agent who is appointed such under some written contract or document.

Taking these various factors together, I would hold that we are not bound by Green v Weaver and Robinson v Kitchin. On the contrary, we are entitled to, and should, uphold the decision of Browne-Wilkinson V-C in Tate Access Floors Inc v Boswell, which Hoffmann J followed. I would therefore dismiss the Mirror Group appeal."

"The material which, it is claimed, has been uncovered would clearly have been discoverable on general discovery in that action so far as it related to the 60 house types covered by the 1984 order, although it may well be that an application for discovery of that material specifically for the purpose of supporting a motion for contempt would have been unsuccessful. Thus much, if not all, of the material covered by the implied undertaking in the 1985 action would in any event have had to have been made available in the 1984 action although possibly at a later stage. It is said that on general discovery in the 1984 action the appellants would, so far as they were able to demonstrate that any contempt committed was not a 'related offence', have been able to resist disclosure by pleading the privilege against self-incrimination. That may be right, although if it is it produces the extraordinary result that a defendant, by putting himself in contempt of court, can successfully resist discovery of relevant documents at any stage of the proceedings. Thus logically a defendant who, in response to an order for verification of his list of documents by affidavit, makes inadequate discovery can thereafter resist any application for discovery of particular documents on the ground that to comply would demonstrate that he had been in breach of the earlier order and thus in contempt. I cannot think that that can be right, but it is unnecessary to decide the point since such an objection, if open at all, would have been equally open on the execution of the 1985 order and was not taken. I can, therefore, in the circumstances of this case, discern no injustice to the appellants if the documents are made available for use in the 1984 action. Should the point arise for decision it may be necessary in relation to the production of relevant documents essential to the conduct of proceedings (I say nothing about interrogatories) to reconsider the extent of the privilege against self-incrimination where it is prayed in aid solely on the ground of liability to a motion for civil contempt in those proceedings."

"The proper policing and enforcement or observance of orders made and undertakings given to the court in an action are, in my judgment, as much an integral part of the action as any other step taken by a plaintiff in the proper prosecution of his claim."