A New Gateway Opens ' More English Court Options For Victims Of Overseas Fraud
Published date | 24 November 2022 |
Law Firm | Proskauer Rose LLP |
Author | Ms Dorothy Murray, Julia Bihary and Charles Bishop |
Recent rule changes allow claimants full access to key English law mechanisms to discover the identity of defendants and location of assets, even where the wrongdoers and third parties are not based in England. This is highly relevant for victims of cyber-crime and crypto frauds.
To bring an English Court claim against a non-English defendant, a claimant must serve proceedings out of the jurisdiction. This typically requires permission of the English Court, who will consider - among other matters - if it falls within one of the defined sets of circumstances or service "gateways" listed in the Civil Procedure Rules (CPR). These include where the contract is made in England or governed by English law, where one of a group of defendants is within the jurisdiction, or where a claim is made to enforce a judgment or arbitral award.
Victims of fraud often do not know the identity of the fraudster or the current location of their stolen assets, particularly in cases of cybercrime and crypto-asset litigation. English law contains a number of useful tools for such claimants, which can collectively be considered as "information orders":
- Norwich Pharmacal Orders (NPOs) - this order requires a third party who has been innocently mixed up in wrongdoing to disclose documents or information, to, for example enable the applicant to uncover the identity of a wrongdoer.
- Banker's Trust Orders (BTOs) - this order is available where there is a fairly clear-cut case of fraud to require disclosure of confidential documents, normally from the defendant's bank, to support a proprietary claim or trace assets.
- Documents can also be obtained in various circumstances at the pre-action stage from third parties, or during the course of proceedings by way of a non-party disclosure order.
In addition, English courts, and their highly qualified, tech-savvy judiciary, have at their disposal a range of effective asset tracing measures and interim remedies, including worldwide freezing orders against persons unknown in their arsenal to assist victims of (crypto-) fraud.
Until very recently, however, there has been a real question about whether claims for the "information orders" described above fall within any of the service gateways.
In the recent case of Gorbachev v Guriev [2022] EWCA Civ 1270, the Court of Appeal considered there was power under the then existing rules to permit service of third-party disclosure applications abroad in circumstances where the documents in question are...
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