UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
for other collateral purposes without the permis - sion of the court. 2.4 Procedural Orders Procedural orders in fraud cases are often sought “without notice” to the defendant in order to avoid “tipping them off” . If the order is granted, the defendant is subsequently given an opportunity (through the “return date” ) to vary or discharge the order. In an effort to ensure that the defendant is not unduly disadvantaged by not being present when the order is first sought, the claimant must give “full and frank” disclosure of all relevant facts, including any points that are disputed or that might have otherwise been advanced by the defendant. English courts are becoming increasingly vigi - lant in ensuring that the duty of full and frank disclosure is properly complied with by claim - ants. This issue is taken seriously and is often a point on which the defendant may subsequently challenge what has taken place. Such challeng - es may have serious repercussions in that they may not only damage the claimant’s credibility but may also result in the order being discharged at the return date (or earlier) and in an adverse costs order being made against the claimant. Furthermore, in seeking an order without notice, the claimant will typically need to provide “cross- undertaking in damages” , which means they must compensate the defendant for any loss suffered if it is later shown that the injunction should not have been granted. 2.5 Criminal Redress Criminal proceedings for complex and high- value instances of fraud in the United Kingdom are typically investigated and prosecuted by
the government’s Serious Fraud Office. While uncommon, it is possible 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 subse - quent trial. There is nothing to prevent a civil claim follow - ing criminal proceedings, or vice versa. Similarly, civil and criminal proceedings may take place simultaneously, provided there is no risk of seri - ous 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 pos - sible for a claimant in a fraud claim to obtain “default judgment” where the defendant does not take steps in the proceedings. Similarly (although only in 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.
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