Abstract
This case relates to whether a District Judge was right to issue a stay of prosecution by setting aside a summons issued in a private prosecution. The claimants, Pradeep Morjaria (PM) and Sangita Morjaria (SM) sought judicial review of a decision by a District Judge (Magistrates’ Court) to stay criminal proceedings they brought against Camran Mirza (CM), in which they alleged CM to be guilty of six counts of fraud and one count of conspiracy to commit fraud. Charges were initially laid at Westminster Magistrates’ Court and summonses were issued by a District Judge. CM then successfully applied to the same Judge to have the summonses set aside. The instant case relates to an application to the King's Bench Division (Admin.) of the High Court, for judicial review of the District Judge's decision to set aside of the summonses and resultant stay of prosecution.
Background
PM and CM met in the early 1990s and set upon a joint business venture to develop a property at 22-24 Uxbridge Road in Ealing, London. In order to facilitate this, they formed a company in Jersey, known as Otaki, which engaged a company, Tydwell Limited (Tydwell), owned by CM and his wife Saira Mirza (SMi), to act as the main developer for the site (at [4]). Part of the development of the site included the installation of cladding which, following the Grenfell Tower disaster, was inspected and identified as being defective. The original cladding was installed by Mace, who paid, in settlement, a sum of £2.75 m to Otaki. Otaki then contracted with Tydwell to replace the defective cladding, at an approximate cost of 750,000, with PM and CM sharing the remainder of the settlement payout from Mace (at [5]). Otaki was later told by Tydwell that the cost of replacing the cladding was almost £2.7 m, leaving little to be shared between PM and CM. However, the invoices presented to Otaki amounted to a little in excess of £1 m, with Tydwell claiming that the remainder owed to them, was due to the 12-year warranty offered with the work undertaken (at [6]). This, along with allegations that Tydwell regularly overcharged Otaki, led to a case involving approximately £4.85 m (at [8]).
On 15 August 2022, PM and SM laid charges against CM, SMi, Ameer Mirza (AM) and the company, Tydwell (hereinafter the ‘defendants’). The charges were of six counts of fraud and one count of conspiracy to defraud. On 23 August 2022, District Judge Sternberg directed that summonses could be issued, and Westminster Magistrates Court duly issued the summonses on 30 August 2022. The defendants subsequently applied to have the summonses set aside, an application which the same District Judge granted on 20 January 2023 (at [4]).
It is noteworthy at this stage, that the aforementioned criminal case ran alongside civil proceedings pertaining to the same matter and, in setting aside the summons, the District Judge found that the ‘primary and dominant motive in bringing the criminal proceedings was to seek to force settlement’ in the civil case (at [22]), thus rendering the commencement of the private prosecution an abuse of process. The District Judge was empowered to do so by r.7.14(f) Criminal Procedure Rules, which sets out that a Court may decline to issue a summons or warrant where the prosecutor's dominant motive in bringing the prosecution would render the prosecution an abuse of process of the court. District Judge Sternberg also found that not laying before the court, material relating to PM's desire to utilise the criminal case to promote settlement in a civil claim amounted to a ‘highly serious and significant breach of the duty of candour’ (at [23]).
The Judge arrived at the conclusion that PM's true motivation for the prosecution was outside that which is ‘purely or solely by seeking justice in an objective sense’ ([22]). The Judge did so based on communications between PM and his legal representatives, some of which pointed to the criminal prosecution being used to leverage CM to settle the civil dispute (at [14–15]). In one communication, PM made it clear that including CM's family, including his wife SMi, in the prosecution would strengthen his position and facilitate expedience in CM commencing negotiations to settle the civil claim (at [16]).
In support of the above, it is significant that communications between PM and his lawyers made clear the importance attached by PM to the timing of both the civil and criminal cases, with particular regard to the fact that the criminal case needed to be commenced before negotiations took place in relation the civil matter (at [18]). Notably, PM stated in one email that CM would only take the proposed civil settlement seriously, if he believed the criminal case to be genuine, prescribing that the relevant settlement figure should only be disclosed once the criminal case had commenced. Even when PM was advised by his lawyers, that using the criminal process to put pressure on CM to settle the civil claim would go against him in the criminal courts, PM, whilst stating that securing justice was the primary aim of the criminal case, proceeded to refer to the criminal case as a tool which could be utilised to force settlement (at [19]). The nature of the communication led the District Judge to arrive at the conclusion that PM's ‘overwhelming, primary and dominant motive (in bringing the criminal proceedings) was to seek to force settlement’ (at [22]).
Judicial Review
The claimants sought permission to apply for judicial review on the basis that:
the District Judge erred in law in finding that the private prosecution brought by PM and SM was an abuse of process (at [33]); that the District Judge's finding that the motivation of the prosecution was to seek to force the settlement of the civil claim was irrational, and that the Judge failed to give any convincing reason as to why the criminal case proceedings were oppressive (at [34–36]); and the District Judge's conclusion that the prosecution had failed in their duty of candour in relation to the bringing of a private prosecution was also irrational (at [38]).
Sir Duncan Ouseley considered the application, and adjourned the application for permission to be listed as a rolled-up hearing. This hearing took place on 7 November 2023 before Lord Justice William Davis and Mrs Justice Stacey (hereinafter the ‘Court’) (at [3]). Judgment was handed down on 17 November 2023.
in deciding whether criminal proceedings constitute an abuse of process, the Judge carries out an evaluative process based on judgment, rather than on conclusions of fact based on evidence (at [41]); that the District Judge did not err in finding that the prosecution constituted an abuse of process in this case; that the District Judge did not act with irrationality in arriving at the conclusion that the prosecution was an abuse of process.
In relation to the first ground, the Court concluded that District Judge Sternberg was correct in his assessment, that the bringing of the prosecution constituted an abuse of process. It did so, on the basis that District Judge Sternberg had identified and applied the correct test from R v Taktouk (Elie) [2022] EWCA Crim 1254, namely: [T]hat the factors which had to be established in relation to cases where improper motive was said to create an abuse were as follows: …the defence would … need to show that the motive for settlement was: a) a primary motive and one which is so unrelated to the proceedings that it renders it a misuse or an abuse of the process…; b) an oblique motive which is so dominant and so unrelated to the proceedings that it renders them an abuse of process…; c) even if it were an ‘indirect or improper motive’ it would have to be one that rendered the conduct ‘truly oppressive’ or d) That the ‘proceedings [were] tainted by mala fides or spite or some other oblique motive’… (at [29] and [42]).
The Court also explained that, in arriving at the conclusion that the prosecution constituted an abuse of process, District Judge Sternberg would need to be satisfied that either the primary or a dominant oblique motive of the prosecution would have to render the proceedings truly oppressive (at [42]) at the time the prosecution was initiated (at [43]).
A significant factor pointing to the conclusion that the prosecution constituted an abuse of process was that, at the time of bringing the prosecution, the defendant had not been provided with any documentation setting out PM's desires to settle the civil case alongside the commencement of the prosecution (at [43]). In doing so, District Judge Sternberg, correctly in the eyes of the Court, distinguished the case of R (Siddiqui) v Westminster Magistrates’ Court [2021] EWHC 1648 (Admin), in which the defendant was, in advance of the issuance of summons, furnished with a copy of the settlement agreement pertaining to an associated civil claim. Notably, this was done as part of negotiations specifically in relation to the civil suit, as opposed to being disclosed as part of the criminal proceedings. However, it was in Siddiqui, significant that the defendant had in their possession, a document pertaining to the civil settlement, and it was at their behest to introduce it in the context of the criminal case against them, and they were not reliant upon the prosecution being subject to a disclosure order in order to discover the proposed civil settlement. In essence ‘the prosecutor had not kept the defendant from discovering [the civil claim]’ (at [43]), meaning that ‘[t]he criminal proceedings could not offend the court's sense of justice and propriety’ (at [43]). By contrast, were it not for District Judge Sternberg ordering the disclosure of material in which the civil claim was disclosed, the defendants would not have been aware of the civil claim (at [43]), at least until after they also felt the pressure of the criminal case.
Regarding the second ground, the Court dealt very clearly with any suggestion of District Judge Sternberg's finding that the prosecution constituted an abuse of process was irrational, by stating that it was ‘satisfied that [District Judge Steinberg's] conclusion that PM's primary motivation in issuing criminal proceedings was to use those proceedings as a threat in order to force CM to settle the civil claim cannot be open to sensible criticism’ (at [48]). In arriving at this conclusion, the Judges focussed on a message PM sent to his lawyers in the criminal case, noting that the criminal case was a mere ‘means to an end’ (at [48]), to force the defendants to settle the civil claim, which does not constitute ‘proper use of criminal proceedings’ (at [48]), Perhaps most pertinent: It was apparent from the exchanges between PM and EMM, in particular the e-mail of 8 July 2022, that PM envisaged the threat carried by the issue of criminal proceedings having the desired effect in which event the summonses would be withdrawn. That shows that the criminal proceedings were not an exercise in criminal justice. Rather, they were a tool being used by PM for his private purposes. In our view, that constituted an improper motive (at [48]).
Finally, the Court went on to deal briefly with the applicant's assertion that the District Judge's consideration and findings as to the failure of the prosecution to provide details of their motive for the commencement of the criminal proceedings. Whilst finding that the ‘crucial issue was whether what was revealed by the material had the effect of rendering the proceedings an abuse rather than whether there had been a culpable breach of the duty of candour’ (at [47]), the Court noted that the summary presented to the District Judge was ‘misleading at best’ (at [51]) and that the ‘material later disclosed should have been placed before the judge from the outset’ (at [51]).
Commentary
The role of private prosecutions in the criminal justice system in England and Wales has faced a significant degree of scrutiny in recent times. Notably, the Post Office string of cases, in which the Post Office as a private prosecutor brought a number of charges against sub-postmasters that led to convictions which have since been overturned (see, e.g. Hamilton v Post Office Ltd [2021] EWCA Crim 577), has given rise to suggestions that private prosecutions should be abolished (see, S. Coleman, Evaluating private prosecutions: reform or abolition? [2023] 11 Crim. L.R 692). However, as noted by McMahon, (In defence of private prosecutions [2024] 174(8067) NLJ 7), the ability for individuals to bring criminal proceedings, where the state has failed to prosecute, is vital to ensuring justice is achieved, particularly for organisations who are the victims of fraud.
The case of Morjaria is a significant one. In order to protect the status of private prosecutions in the criminal justice system of England and Wales, the courts must do all they can to ensure that those private prosecutions that lead to convictions are prosecuted with candour, integrity and genuine desire to achieve criminal justice. The courts dealing with this case have clearly met this need, by refusing to allow a prosecution which had the dominant aim of securing the settlement of a concurrent civil claim.
An interesting facet of this case is the fact that the District Judge had to balance the fact that he considered there to be a ‘clear prima facie case of significant fraud on the material before him’ (at [32]), with the notion that the prosecution was being sought based on an improper motive. Indeed, the District Judge stated that ‘the presence of a dominant motive so unrelated to properly constituted proceedings is in my view wholly decisive of the question of whether an abuse of process is established’ (at [32]), an approach that was met with approval by the Court hearing the application for permission to seek judicial review (at [48]). In light of the fact that some are currently questioning the validity of the existence of a system of private prosecutions, it seems sensible to ensure that private prosecutions are only brought where the primary motive is that of achieving justice, and that where the ‘primary or dominant oblique motive’ is something other than achieving justice, the relevant Magistrates’ Court is empowered to refuse to issue or withdraw summonses on the basis that the prosecution would constitute an abuse of process.
As noted above, one of the key considerations for both the District Judge and the Court hearing the application for permission to seek judicial review, was the failure to disclose at the outset of the criminal proceedings, the true motivation for the prosecution. PM instructed lawyers in order to commence the relevant private prosecution, and the Court noted that the District Judge was generous to those instructed by PM, in that ‘he said he did not find that material had been deliberately concealed so as to manipulate the application for summons’ (at [46]). Indeed, whilst the Court did not find PM's lawyers expressly culpable for any failure the Court did note that there was ‘a failure to disclose highly relevant material [that constituted] a serious failure, irrespective of culpability’ (at [46]). Nevertheless, lawyers should pay heed to this case, so as to ensure they do not fall foul of their duty not to mislead the court when laying information to commence proceedings.
Finally, Ormerod and Quirk (The Post Office miscarriages of justice [2021] 7 Crim. L.R 509) allude to the fact that a cause of action open to those who have faced vexatious private prosecutions to be that of malicious prosecution. In the instant case, it is seemingly unlikely that a claim for malicious prosecution would be successful, as there is a need for those claiming to show an absence of reasonable and probable cause in the bringing of criminal proceedings (per Willers v Joyce and another [2016] UKSC 43). In Morjaria, the determination of the District Judge that the documentation submitted to the Magistrates Court satisfied him of a ‘clear prima facie case of significant fraud’ (at [32]), suggests that such reasonable and probable cause existed. However, this availability of malicious prosecution as a remedy for defendants of private prosecutions, should cause private prosecutors to think twice about commencing a prosecution for reasons other than the seeking of justice in an objective sense. This is vital, if the right of private citizens to bring prosecutions is to be preserved.
