UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
They operate in a similar manner to Norwich Pharma - cal orders, but are generally easier to obtain. Restricted Use Where an order allows for material to be obtained from a third party, that material can normally only be used in respect of the specific proceedings in which the order was made – it cannot be used for other collateral purposes without the permission of the court. 2.4 Procedural Orders There is no applicable information in this jurisdiction. 2.5 Criminal Redress Criminal proceedings for complex and high-value instances of fraud in the United Kingdom are typical - ly investigated and prosecuted by the government’s Serious Fraud Office. While uncommon, it is possi - ble for a private party or individual to bring their own criminal prosecution against the wrongdoer. In some instances, a criminal conviction for fraud will result in an order requiring the wrongdoer to repay the victim, although this is not always the case. Fraud victims seeking redress will usually pursue a civil claim against the wrongdoer on the basis that: • civil proceedings are controlled by the victim (rather than a prosecutor); • civil proceedings have a lower standard of proof (in that the claim must be proven on the balance of probabilities rather than beyond reasonable doubt); and • civil proceedings (generally) take less time than a criminal investigation and any subsequent trial. There is nothing to prevent a civil claim following criminal proceedings, or vice versa. Similarly, civil and criminal proceedings may take place simultaneously, provided there is no risk of serious prejudice to the defendant(s). Having noted this, it is uncommon for proceedings to take place simultaneously. 2.6 Judgment Without Trial As with other civil proceedings, it may be possible for a claimant in a fraud claim to obtain “default judg - ment” where the defendant does not take steps in the
proceedings. Similarly (although only in very extreme cases), a defendant who fails to comply with orders and instructions issued by the court may be “de- barred” from taking steps to defend the claim. It should be noted that the enforcement of any judg - ment is a separate process (see 5.1 Methods of Enforcement ) and will be particularly difficult where a dispute has an international element and/or where the defendant is refusing to engage. It is difficult (although not impossible) to obtain “summary judg - ment” (whereby a judgment is obtained without a full trial) in fraud claims because it will generally be nec - essary for the defendant to be cross-examined and to have the opportunity to respond to the allegations that are being made. 2.7 Rules for Pleading Fraud There are special rules (set out in Rule 16 of the CPR and the associated Practice Directions) that apply to pleadings of fraud and/or dishonesty. In particu - lar, allegations must be clear and should set out the specific facts that the claimant intends to rely on in showing that the other party acted fraudulently or dis - honestly. Furthermore, barristers and solicitors in England are subject to specific professional rules in relation to fraud allegations. In general terms, these rules provide that a barrister or solicitor must not make an allegation of fraud unless they have clear instructions and rea - sonably credible supporting material. In this respect, care should be taken to not overstate the position against a defendant. Pleadings may be amended following disclosure should fraudulent or dishonest activity come to light through that process. 2.8 Claims Against “Unknown” Fraudsters English courts have the ability to make judgments and orders against “persons unknown” where a claimant cannot identify a specific individual who has caused them harm. Where a freezing order (see 1.7 Preven- tion of Defendants Dissipating or Secreting Assets ) is made against persons unknown, it will likely apply to any person who assisted or participated in the fraud, as well as to any person who received misappropri - ated funds. A freezing order will often be paired with orders against third parties such as banks (see 2.3
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