UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
It should be noted that the enforcement of any judgment is a separate process (see 5.1 Meth- ods 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 impossi - ble) to obtain “summary judgment” (whereby a judgment is obtained without a full trial) in fraud claims because it will generally be necessary 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 dishon - esty. In particular, allegations must be clear and should set out the specific facts that the claim - ant intends to rely on in showing that the other party acted fraudulently or dishonestly. Furthermore, barristers and solicitors in Eng - land 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 reasonably credible supporting material. In this respect, care should be taken to not overstate the position against a defendant. Pleadings may be amended follow - ing 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 judg - ments 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 Prevention of Defend- ants 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 misappropriated funds. A freezing order will often be paired with orders against third parties such as banks (see 2.3 Obtaining Disclosure of Documents and Evidence From Third Par- ties ) in an effort to identify people involved in the fraud. The ability to take steps against persons unknown has become particularly significant in recent years given the rise of cyberfraud. Such orders show the English courts’ willingness to take a flexible and innovative approach when assisting victims of fraud. 2.9 Compelling Witnesses to Give Evidence The CPR allow a court to issue a summons requiring a witness located within the jurisdic - tion to attend court to give evidence or to pro - duce documents. This power is in addition to the orders requiring third parties to provide spe - cific information and material (see 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties ), which are more likely to be uti - lised in a fraud claim. 3. Corporate Entities, Ultimate Beneficial Owners and Shareholders 3.1 Imposing Liability for Fraud on to a Corporate Entity As a general rule, English law holds that a com - pany acts through its board of directors and senior officers, and that the actions and states of mind of those individuals will be attributed to the company. Similarly, companies will normally be vicariously liable for the actions (including
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