Page 148 - Deception at work all chapters EBook

Planning Investigations and Legal Background for Tough Interviews 149

be compelled to disclose all of his assets or documentation which establishes his responsibility for
wrongful acts. The claimant also has to disclose any evidence which could conceivably assist
the defendant and this aspect has to be carefully handled, usually by lawyers.

Again, a fundamental principle is that material that could be relevant to the case is dis-
closed to the opposing party: usually during the discovery process. For this reason investiga-
tors should catalogue all material collected during a case and make sure it is brought to the
attention of lawyers.

Defendants in civil cases have no general right against self-incrimination, although some
will argue to the contrary on the basis that disclosure could result in criminal prosecution
or interfere with their human rights. The case of Rank Film Distributors v Video Information
Centre 1992 is an example of how the protection against self-incrimination is increasingly
applying in civil cases. The point is particularly relevant when pre-emptive orders are being
sought. Defendants may refuse to comply on the grounds that to do so could expose them to
criminal liability. Thus the drafting of the pre-emptive order, in relation to future criminal
proceedings, is vital.

PENALTIES IN CIVIL CASES

Penalties in civil cases can include recovery of all losses, interest, costs and damages which are
normally payable to the claimant. However, both parties are responsible for legal and other
costs and the loser may have to compensate the winner. This can be a serious disincentive and,
in fact, the party with the largest purse usually has the advantage.

Information privileged against disclosure

In both criminal and civil proceedings certain material is classified2 as ‘privileged’ and does
not have to be disclosed to the opposing party including:

• all communications between a client (or his agent) and his solicitor (or his agent), in con-
templation of proceedings, including requests for legal advice, reports and statements. This
is usually known as ‘Legal Professional Privilege’ (or in the USA ‘Client–Attorney’ privilege)
and it protects the client against adverse disclosure;

• ‘without prejudice’ correspondence;
• internal reports prepared by a Special Task Force specifically created to investigate an im-

portant matter;
• communications between employees and others who have a common business interest.

For example, internal reports, staff appraisals and personal references are usually protected
under the rule for common business interests. Also an accusation made about a suspected
crime to the police with a view to detecting an offender is privileged (in the UK see Kine v
Sewell 1838).

For all practical purposes, privileged information does not exist and protection is substantive
rather than procedural, as was the case until a few years ago. Exceptions include cases where
privilege is waived, privileged material is foolishly disclosed, where publication is excessive

2 By legal advisers acting for one or more of the parties and ultimately by the trial judge