Responding To Payment Fraud By Seeking Urgent Injunctive Relief: Cross-Border Recovery Action, The CMOC Case And Dentons' Global Injunctions Toolkit

The English High Court has demonstrated a willingness to adapt existing practices to address the challenges posed by payment fraud in the digital age. In the case of CMOC Sales and Marketing Limited v. Persons Unknown [2018] EWHC 2230 (Comm), the High Court granted a worldwide freezing injunction against "persons unknown" responsible for misdirecting substantial payments by hacking emails, and permitting service of documents by electronic means such as WhatsApp, Facebook and via an online data room.

Not all jurisdictions have proven themselves to be as willing to manufacture remedies for those who have fallen victim to cyber attacks. Dentons' Global Injunctions Toolkit, available without a subscription at www.globalinjunctions.com, provides a comparative overview of the available procedures in 35 countries around the globe, allowing its users to gain insight almost immediately upon discovery of a fraud into the principles governing injunctive relief in those jurisdictions which may be relevant in their own case.

Facts

In CMOC, the claimant company was the victim of a fraud by which unknown criminals hacked into its email system and caused the payment of approximately US$8 million to fraudulently controlled bank accounts.

Some 10 days after the fraud was discovered, CMOC obtained a worldwide freezing injunction against "persons unknown" as the identity of the fraudsters and ultimate recipients of the misdirected funds were not apparent at that stage. The claimant then began the process of identifying the culprits by obtaining information and disclosure orders against the banks to which the funds had been transferred.

This was an extensive, complex and time-consuming process. Over the nine-month period from obtaining the injunction until trial, some 14 applications were made to the Commercial Court, together with another seven on paper, concerning payments made to some 50 banks in 19 jurisdictions. As matters developed and further information was obtained, CMOC joined various parties to the proceedings, often serving formal court documents by electronic means such as WhatsApp and Facebook. The claimants also set up an online data room containing key documents and provided various interested parties and defendants with access as a means of serving those documents upon them.

In the event, the perpetrators did not engage with the proceedings and the claimants obtained judgment at trial, together with a costs order in their favour on the...