UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
Assist or Facilitate Fraudulent Acts ) against the person who paid the bribe (assuming the party receiving the bribe is a fiduciary) or for procuring a breach of contract (on the basis that an agent/ employee will typically breach the terms of any contract if they receive a bribe). In doing so, the wronged party may be able to rescind all trans - actions between them and the party paying the bribe (or the company they are associated with). Injury by Unlawful Means In some circumstances, it may be possible for a wronged party to bring a claim for conspira - cy to injure by unlawful means (see 1.3 Claims Against Parties Who Assist or Facilitate Fraud- ulent Acts ) against a third-party competitor that it suspects of bribery (ie, in circumstances where Party A suspects that its competitor, Party B, has paid bribes to a potential customer, Party C, such that Party C agrees to do business with Party B and not with Party A). Such claims are difficult to substantiate, as it is insufficient to show that the bribe was merely likely to injure Party A – rather it must be shown that Party B had an intention to injure Party A. Separate Criminal Offences Note there are also separate criminal offences for bribery, which arise under the Bribery Act 2010. 1.3 Claims Against Parties Who Assist or Facilitate Fraudulent Acts In some circumstances, English law allows a wronged party to claim against third parties who do not owe any pre-existing duties. These claims will be particularly important where the primary wrongdoer (ie, the one who owes specific, pre- existing duties to the victim) is out of the jurisdic - tion or does not have assets with which to satisfy a claim. Three causes of action are most relevant in such circumstances.
Where that occurs, English law makes an irre - buttable presumption that the party making the payment did so to cause the agent/employee to prioritise their interests over those of the coun - terparty, and that the agent/employee was actu - ally influenced by the bribe. It should be noted that the agent/employee cannot avoid liability by arguing that the payment is governed by (and has no adverse consequences under) foreign law. This is because English courts will not apply a foreign law where doing so conflicts with the principles of domestic public policy. In bribery cases, English courts have historically been ready and willing to find that a fiduciary relationship existed by giving the usual rules a wide and loose interpretation – or indeed by dis - regarding the usual rules that would otherwise suggest that no such relationship existed. Damages and/or Equitable Remedies If a claim of bribery is successful, the claimant can seek damages and/or equitable remedies (such as requiring the defendant(s) to account for, or return, any profits made). The amount recovered will generally be at least the value of the bribe (even if there is no other identifiable loss), which can be, for example, on the basis that English law deems that the agent/employee holds the bribe on “constructive trust” for the benefit of their principal/employer. This is signifi - cant as it provides the principal/employer with a proprietary interest (see 1.5 Proprietary Claims Against Property ) over those funds (and there - fore the asset is not available to creditors of the agent) and carries no requirement to prove that the actions of the agent/employee caused dam - age to the principal/employer. Dishonest Assistance The wronged party may also claim for dishonest assistance (see 1.3 Claims Against Parties Who
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