Getting the best result: an overview of coordinating criminal and civil proceedings

Weightmans’ Regulatory team is particularly well known for the work we do for leading liability insurers in defending individuals and organisations in relation to criminal proceedings following serious workplace accidents and the seamless service we provide in conjunction with our Claims colleagues handling civil cases. 

Managing a civil claim alongside criminal or coronial proceedings requires careful coordination and sensitivity to evidential and procedural rules. It is important, when involved in the interplay of different legal processes, that insurers are careful to avoid any action that could jeopardise due process or prejudice the insured’s position.  

When a workplace incident leads to both criminal proceedings (and inquest proceedings in the case of a fatality) and a civil claim, it can feel as though entirely different systems are pulling in opposite directions. However, with strong strategic planning and close coordination, these processes can be managed in harmony to strengthen the position of the insured, protect reputations and bring measurable savings to the costs budget. 

Timings

Generally, criminal proceedings are likely to come first and so can set the landscape for how a civil action is looked at. Therefore, where there is potential for a civil claim from the Injured Person of the Estate of the deceased, if a fatal case, then engaging the civil team early is vital, even when no claim has yet been intimated. In the more unusual circumstances of a civil claim being made before the conclusion of any criminal proceedings, the same considerations apply i.e. to what extent will strategic decisions made in the criminal case potentially bind the response to the civil action? In our experience, the first question that needs to be answered is: is any civil claim directly linked to the facts on which the criminal proceedings are brought and vice versa? 

Burden and standard of proof

In most criminal proceedings the prosecution is required to prove its case so that the jury is sure of the defendant’s guilt, whereas in civil cases the successful party is only required to prove its case “on the balance of probabilities". This key difference means that the outcome of a criminal matter can significantly influence the civil proceedings as the evidence has been tested to a higher standard of proof. Of course, that’s normally what happens but with health and safety it is flipped on its head and in the circumstances of a health and safety prosecution, the only evidence required to prove guilt so that a jury is sure is that a risk of harm to an employee or non-employee existed. The law then places the burden on the defendant’s shoulders to establish its innocence on the balance of probabilities. 

Recognising the different objectives between criminal and civil cases

It is important to remember that each process serves a distinct purpose. A criminal health and safety prosecution will focus on identifying breaches of statutory duties and criminal offences whereas a civil claim addresses compensation and determines liability for damages.

While the procedural frameworks differ, both matters rely on the same underlying facts following a workplace incident. A well-coordinated defence can ensure consistency of position and prevent one process from undermining the other.

Disclosure challenges and making tactical decisions

Inevitably, the management of parallel criminal and civil proceedings involves making tactical decisions. It is important for those advising to anticipate the broader strategic impact that decisions made in the context of each individual action may have.

A party seeking to rely on disclosure, such as witness statements, served in one action for the purposes of another are required to seek permission from the relevant court or tribunal before proceeding to do so. 

Decisions in relation to disclosure can present challenges where parallel criminal and civil proceedings are concerned. Obligations in terms of disclosure of case material can be complex to manage and so anticipating any relevant obligations from the outset of a case can be crucial in preventing inadvertent breaches of rules and duties. If not carefully managed, conflict or tension can arise between the strategies adopted in each of the proceedings and the applicable procedure rules.

A joined-up approach - aligning case strategies and communication

A key benefit of instructing Weightmans to handle both the criminal and civil case is that separate legal teams with differing specialisms can work together to deal with the different cases arising out of the same set of facts. 

It is important to remember that material pertaining to one set of proceedings may be of detriment to the other related set of proceedings and present challenges to legal teams in terms of navigating the action over which they have conduct. Tensions or inconsistencies between parties to parallel proceedings can be exploited by an opponent and may lead to damaging concessions or findings. For this reason, there is a real need for close liaison between parties to parallel proceedings to ensure that any tactical decisions taken in one set of proceedings do not have an adverse impact on the other.

For corporate clients and their insurers, clear and consistent communication across both legal teams (criminal and civil) is essential. The criminal and civil teams together with insurers should aim to establish and maintain a unified strategy from the outset. This alignment can not only strengthen credibility before the relevant court but also reduce time spent revisiting strategy later, another area where cost control is achieved.

Turning one process to the advantage of the other

A successful outcome in one forum can often positively influence the other. For example, favourable inquest findings can mitigate reputational harm and support a robust civil defence. An acquittal in a criminal case can significantly reduce the civil exposure or prompt early settlement at a realistic level. In turn, civil case preparation may identify evidential gaps or mitigation points that go to reducing the impact of offending in criminal proceedings.