EWJ August 62 2025 web - Journal - Page 31
l Pursue a private prosecution where public authorities do not have the capacity or resources to act, and
the facts support criminal proceedings; and
Courts will carefully examine motive, especially where
there are parallel civil proceedings, the client has a
strong financial incentive, and there is a risk of abuse
of process. That said, properly managed, they offer a
credible route to justice and a growing area of work
for litigation departments across the UK.
l Engage in parallel civil claims to recover losses.
When properly justified, this approach can support
faster recovery and a clear public interest outcome,
but must be carefully managed to avoid any
appearance of abuse or coercion.
Conclusion
As public enforcement struggles to meet demand, civil
litigators are stepping into the criminal space. For
clients affected by fraud, hybrid strategies using private prosecutions, restraint orders, and parallel civil
claims are becoming not just viable, but essential.
When Should Civil Litigators Think Criminal?
Civil remedies may not always be sufficient where
criminal conduct is involved, and in appropriate cases,
private prosecutions can provide a pathway to
accountability and deterrence.
Knowing when to “go criminal", and how to do it
properly, is now part of the modern civil litigator’s
toolkit.
Litigators should consider criminal options when:
l The fraud involves dishonesty, theft, or deception;
lThe alleged wrongdoer has limited UK assets or
may abscond;
l Reputational harm is acute, and a public finding of
guilt would assist and be in the public interest; or
l There is a chance of criminal recovery exceeding
civil loss.
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Author
Michael Lewis
Associate
https://insights.devonshires.com
Risks and Ethical Duties
Private prosecutions are not tactical weapons to be
misused. Private prosecutors have a duty to act fairly,
independently, and with full disclosure - they must be
equivalent to public bodies.
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