Private Prosecution or Civil Proceedings - How to Decide

When someone wants legal action brought against another person (or organisation) they believe has committed a crime against them, they have three options:

• Report the matter to the police or other authority – and hope they will prosecute the person.
• Bring a private prosecution against the person.
• Bring civil litigation (also known as civil proceedings or civil action) against the person in a bid to seek damages and/or recover what was lost due to that person’s actions.

Private Prosecutions vs Civil Proceedings - What’s The Difference?

Reporting a person’s wrongdoing to the authorities and expecting them to prosecute is a fairly obvious option. But if the authorities indicate they will not prosecute, it is possible to bring a private prosecution or civil proceedings against that person. But both options need careful consideration. Here are some of the main differences between the two;

• Private prosecutions generally cost less than civil proceedings because the private prosecutor can apply for their costs to be paid by central funds or by the defendant at the end of a prosecution.
• In reality, the success rate of recovering costs in a private prosecution is lower than it is in civil litigation.
  The Crown Prosecution Service (CPS) can take over private prosecutions but cannot take over civil proceedings.
• This could be seen as a positive for pursuing a private prosecution; however, the CPS could also decide to dismiss the prosecution.
• Private prosecutions can be brought at any time, whereas a civil action must usually be brought within six years of the date of loss or when the loss was discovered.
• Private prosecution can be more time-consuming because the standard of proof required is higher than that required in civil litigation.
• A private prosecutor must prove their case beyond reasonable doubt, whereas a civil litigator only needs to prove their case on the balance of probabilities.
• A wider range of options can be sought when bringing a civil action.
• Civil proceedings are the most appropriate option if the main aim is to recover losses suffered as a result of the wrongdoing.
• Civil action is the most appropriate course of action if a person feels that the defendant in a prosecution received too lenient a punishment or was found not guilty.

Private or Civil - Factors to Consider

As we have outlined in this article, there are advantages and disadvantages to both private prosecutions and civil proceedings.

Anyone considering choosing either option or both needs to weigh these up and consider the individual factors of their own case.

These factors may include:

• The best course of action to prevent further losses.
• Whether the police will investigate the matter – or whether they already have.
• Which action will best act as a deterrent and/or protect their reputation?
• Will they be able to reclaim costs?
• Will the threat of civil proceedings lead to the other side making a settlement offer?
• What's the likelihood of a recovery being successful through the criminal courts?
• Are the resources available to bring concurrent proceedings?
• What is the best way to see the interests of justice served?