(This is written by Judge Don Navarro, reproduced here with his express permission.)

I recently had the opportunity to ask Justice Hilarion Aquino about remedies available to an offended party where the information had been dismissed outright for lack of probable cause (see Got Cause?).

A hot topic of discussion among judges that they couldn’t resolve by themselves was whether or not the offended party could still prosecute the civil claim.

In the Philippines, unlike some jurisdictions, the offended party is entitled to prosecute his claim for his personal injury in the criminal action. What the judges can’t seem to agree on, is whether or not, upon a finding that there is no probable cause to prosecute the accused for the criminal case, the civil claim may proceed in the criminal case.

On one hand, some judges say yes. They say it is only just that an offended party should be allowed to pursue his claim so that he may avoid having to go through the inconvenience of filing a separate suit, and thus avoid a multiplicity of suits.

Some of us, including this writer, say no.

Thus, the question I laid at Justice Aquino’s feet. His answer?

“YES! And let me tell you why!” Judges in concurrence with me gasped at this apparent loss in the battle of opinions. Those who still don’t bother to determine probable cause were simply left behind. “To prosecute a civil claim successfully, one only needs a preponderance of evidence. To ensure that a criminal case is given due course in Court, one needs probable cause, a level of evidence higher than mere preponderance. Thus, as relative to preponderance, probable cause is a higher standard of evidence, the civil claim may be prosecuted.”

I’m sure that would have ended all debate before most fora. Except, the good justice ended his answer with, “That is my THEORY.”

With all due respect to the good justice, please allow us in the negative to continue to disagree.

The chief point of contention for the contumacious 😉 is the fact that the civil liability sought to be prosecuted in a criminal action is that which arises from the criminal act itself. This is very different from the liability that arises from a valid cause of action in a civil case, personal injury included. The only valid conclusion that can be derived from the premises, therefore, I SUBMIT, is that the civil claim can no longer be pursued once a judge dismisses a case outright for lack of probable cause for when the Judge does so, he states at the earliest instance, that there is no cause to believe a crime has occurred, and so the basis of civil liability is absent.

This is vastly different from when an offended party has already presented evidence and the Court, having found no criminal liability, awards the civil claim anyway. In this instance, evidence has already been presented, and the inconvenience for the offended party should he have to file a separate civil claim is manifest, for he would have to prove once again what he had already proven in the criminal action, an unnecessary multiplicity of suits. Note that the civil liability awarded is not based on any criminal act. The Court has simply found that based on the evidence presented, the accused is civilly liable to the offended party for some reason other than a crime.

When the case has been dismissed for lack of probable cause, however, the Court makes an express statement that there is no civil liability, as there is no probable cause to believe that the criminal act that gives rise to the civil liability, has occured.

Which is why the better remedy for the offended party in the latter instance is to file a separate civil suit.