Evidence

Privilege against self-incrimination - privilege invoked in defence in civil proceedings - court able to grant summary judgmentVersailles Trade Finance Ltd (in administrative receivership) v Clough: CA (Lords Justice Brooke, Waller and Longmore): 16 October 2001The claimant company commenced proceedings claiming that the defendant was liable to account to it for 11.3m and seeking damages for breach of fiduciary and other duties.The defence served by the defendant mostly just stated that the defendant could not plead to an allegation because that might incriminate him in possible criminal proceedings and asserted that the claimant was put to proof of the matters alleged.The claimant sought summary judgment.

The defendant did not apply to stay the proceedings or to adjourn the application for summary judgment.

The judge granted the claimant summary judgment for 11.3m and a further judgment on liability with damages to be assessed.The defendant appealed.

Following the hearing before the judge the defendant was charged with fraudulent trading contrary to section 458 of the Companies Act 1985.Ian Geering QC and Jonathan Davies-Jones (instructed by Orchard) for the defendant.

David Railton QC and Rory McAlpine, solicitor, (instructed by Denton Wilde Sapte) for the claimant.Held, dismissing the appeal, that the privilege against self-incrimination was a privilege against being compelled on pain of punishment to provide evidence or information, and did not give rise to a defence in civil proceedings nor to a right not to plead a defence in such proceedings; that whether proceedings should be stayed, adjourned or postponed was a matter of discretion for the court; that, in the circumstances, there was no basis upon which the claimant's application for summary judgment should not have gone ahead, the defendant had not demonstrated a real prospect of successfully defending the claim in the respects covered by the judgment and the impact on any criminal trial of entering judgment would be minimal and not such as to preclude the giving of judgment; and that, accordingly, the appeal would be dismissed but the defendant would be given 14 days to apply for time to amend his defence and resist the application for summary judgment on the merits.