13669 Serle Speak 9 AW.Indd

A contemnor’s right Ring-fencing domestic of appeal fraud proceedings serlespeakISSUE NO.9 INDIVIDUALS SUBJECT TO PARALLEL DOMESTIC CIVIL The JSC BTA Bank proceedings concern AND FOREIGN CRIMINAL FRAUD PROCEEDINGS WILL NOT one of the largest fraud actions pending NECESSARILY BE GRANTED THE PROTECTION OF HAVING before the Commercial Court. Mukhtar THE DOMESTIC CIVIL PROCEEDINGS HEARD IN PRIVATE. I am pleased to introduce Ablyazov, the Bank’s former chairman and this new edition of Serlespeak. Chambers The issue was recently addressed part owner of the Bank, stands accused of by Burton J in Access Bank v Eratus The focus this time is on fraud. having stolen some $5bN from the Bank in Bankole Oladipo Akingbola and Ors I begin the newsletter by news nine sets of proceedings, three of which [2012] EWHC 1124 on day one of a considering recent cases on are to go to trial this autumn. six week trial. The defendant was the best practice in pleading fraud, CEO of Intercontinental Bank Plc, which an area fraught with pitfalls. members as prominent barristers People During the course of proceedings, effect, only to be revoked if Ablyazov’s merged with the claimant Bank; he is Subsequently, Lance Ashworth in the field of trusts: Alan Boyle QC, Ablyazov has committed serial appeal were to succeed. Accordingly, it alleged to have defrauded the Bank, We are delighted to announce that QC examines developments since our last Serlespeak Lance Kuldip Singh QC, Frank Hinks QC, breaches of the court’s orders. stayed the effect of its debarring order and is currently subject to on-going Ashworth QC has joined us as a Dominic Dowley QC, Philip Jones QC, Most recently, he has been found to so that trial preparation might continue. criminal proceedings in Nigeria. in the law governing civil tenant and that Sir Raymond Jack William Henderson, Daniel Lightman, be in contempt by failing to disclose Second, the court will only make an remedies for victims of bribery. Jonathan Adkin, Giles Richardson, To avoid prejudice to the defendant has joined our ADR panel. his assets in breach of disclosure order which might invariably lead to the In addition, Simon Hattan Dakis Hagen and Robin Rathmell. in the criminal proceedings an in the public domain. The difficulty in Lance was called to the Bar in orders, and sentenced to 22 months’ dismissal of an appeal or application considers the scope of the fraud exception to legal professional Further in the Citywealth Magic Circle application was made for the civil Access Bank was that by the time the 1987 and took silk in 2006. He has imprisonment. He has reportedly if to do so is in the best interests of Awards Jonathan Adkin was 1 of only proceedings to be heard in private defendant’s legal team were instructed privilege, while Ruth den Besten discusses the court’s approach practised for almost 24 years in 2 barristers short-listed for the Lawyer fled the jurisdiction (in further breach justice (Hadkinson v Hadkinson [1952] (“ring-fenced”) on the grounds that it substantial witness evidence was to appeals from findings of contempt in fraud proceedings. Birmingham, where he headed a 44 of the Year award. of the court’s orders), has refused P 285). Even though the court held was necessary in the interests of justice. strong commercial team of barristers. to provide an affidavit verifying his that there were strong grounds for already in the public domain as a result Finally, Sophie Holcombe explains the circumstances in which of freezing injunction proceedings. His chancery commercial practice Conferences and Seminars asset disclosure, and has declined believing that Ablyazov was in wilful and Failure to ring-fence proceedings civil fraud proceedings may be heard in private to protect the dovetails completely with Serle Court Serle Court jointly hosted a very to disclose his contact details, save contumacious default of the court’s would, it was submitted, provide the It was common ground that the integrity of parallel criminal proceedings. Hugh norbury qc and includes commercial, insolvency, successful Offshore Litigation under the aegis of legal professional orders, this did not justify an order that prosecution in the Nigerian proceedings overriding principle, as established company, chancery and civil fraud conference with Appleby in London privilege to those currently representing Ablyazov surrender to custody since, with advance notice of Dr Akingbola’s in Scott v Scott [1913] AC 417, that law. He is highly recommended in in July. The conference provided an him (a right upheld by Teare J; see if his appeal were to succeed, this defence, from which they could tailor hearings should always take place in the legal directories; Chambers & in-depth look at issues encountered [2012] EWHC 1252 (Comm.)). would not be an available means by their case against him (reference was public, yields only if the interests of Partners describes him as ““a ferocious by solicitors in England engaged in which to secure his compliance with the made to Millett J’s decision in Re DPR cross-examiner,” who attracts high multi-jurisdictional asset tracing Given the well-established authority of justice require otherwise. Burton J court’s orders: [2012] EWCA Civ 639. Futures Ltd [1989] 1 WLR 778). Further, Pleading fraud praise among clients as “down-to- claims. The conference covered a the court to enter judgment following held the test was one of necessity; that it would put the defendant at potential earth, approachable and willing to pick number of jurisdictions, including default of its orders (CIBC Mellon Trust The reluctance to impose conditions “the alleged prejudice must be “proved up the phone at any time of the day.”” risk of self-incrimination, infringe his Bermuda, BVI, Cayman, Guernsey, Co v Stolzenberg [2004] EWCA Civ upon the hearing of Ablyazov’s appeal, strictly” and “to such a standard” as right to silence, and potentially deter Sir Raymond was called to the bar in Isle of Man and Jersey; and three 827; Marcan Shipping (London) Ltd raises a real question as to whether justifies the “unusual procedure”. He The law on pleading and particularising witnesses from giving evidence. 1966 and took silk in 1982. He was a main general topics: finding your v Kefalas [2007] 1 WLR 1864) and the jurisdiction to do so in contempt was not satisfied the test had been met. fraud remains a banana skin causing member of 1 Hare Court, which later targets, securing the assets, and likewise to impose conditions upon cases is more theoretical than real. It is well established that where Burton J expressed concern practitioners to slip up time and time again. joined with Serle Court and he had a enforcing judgment. The Serle Court the hearing of any appeal (Hammond Nonetheless, in delivering the court’s domestic civil and criminal proceedings wide commercial practice. His book, speakers were: Patrick Talbot QC, regarding the difficulty the claimant Suddards Solicitors v Agrichem judgment, Moore-Bick LJ noted that take place in parallel the court will Documentary Credits was first Hugh Norbury QC, Richard Walford, would face in enforcing its judgment A recent example came in the case allegation of actual knowledge and will International Holdings Ltd [2001] EWCA if Ablyazov’s appeal failed, “it may at published in 1991 (4th edition, 2009). Jennifer Haywood, Ruth Jordan, impose “stringent steps” to ensure abroad if proceedings were to remain of Seaton v Seddon [2012] EWHC not, without more, support a finding Civ 2065), it is perhaps surprising that, that stage be appropriate to require the civil proceedings do not interfere Between 1994 and 2001 he ran the Matthew Morrison, Prof Jonathan private until the determination of the 735 (Ch). The dispute concerned of fraud: Armitage v Nurse [1998] Ch Harris and Robin Rathmell. in the circumstances, debarring orders him to surrender to custody as the with the criminal proceedings (see Bristol Mercantile Court. He was Nigerian criminal proceedings. an agreement entered into in 1984 241, per Millett LJ at 256-57, citing made against Ablyazov have been price of being allowed to contest the Taylor v The Government of the USA appointed to the High Court, Queen’s Our autumn seminars and conferences suspended pending the substantive claim…”. Whether such an order is Following Burton J’s decision, it is by various parties interested in the Buckley LJ in Belmont Finance Corp Bench Division in 2001. He retired in will include Partnership and LLP law [2007] EWHC 2527 at 9 per Simon J). hearing of his appeal against the necessary where debarring orders essential that an application to hear intellectual property in a series of songs Ltd v Williams Furniture Ltd [1979] Ch 2011 but continues to sit on a for funds, private equity and financial In Access Bank v Akingbola reliance domestic civil proceedings in private including “Pass the Dutchie”, the 250, 268.” part-time basis hearing business cases. services lawyers and commercial committal judgment, and also that the have already been made (but are court has declined to impose conditions suspensory) remains to be seen. was placed on Attorney General of is made at the earliest possible massively successful single released We are also very pleased that our litigators on 27 September and However, it was argued on behalf of the upon hearing this appeal, in particular Zambia v Meer Care and Desai and opportunity, before any interim by Musical Youth in September 1982. present pupils Adil Mohamedbhai 18 October, Property Litigation: claimants in Seaton v Seddon that the Ors [2005] EWHC 2102; upheld hearings in which evidence is relied and Jonathan McDonagh have both Recent Developments on 3 October, that Ablyazov surrender himself to At paragraph 39, Roth J summarised [2006] 1 CLC 436, in which Peter Smith CPR had changed the position under been offered tenancy and have and a Trusts and Commercial custody. Why, in the circumstances, upon by the defendant (such as those the requirement as follows (its being J refused a stay of domestic civil the RSC. It was clear under the RSC, accepted. They will become members Litigation conference in the Cayman has the court been so cautious? relating to freezing injunctions) take common ground between the parties): through an express requirement in of Chambers in October 2012 when Islands on 29 November. proceedings but ordered that they be place. This is despite the real risk that The answer is not as simply that, they have completed their pupillages. “ring-fenced”, since this was sufficient subjecting a defendant to intensive “In order to be sustainable, an allegation Order 18, rule 12 that a pleading must LinkedIn following his committal, Ablyazov’s to prevent any prejudice being caused cross-examination in English civil of fraud in a pleading must be clearly include particulars of any fraud pleaded Congratulations to John Machell QC We have set up three discussion liberty is at stake, or that he has an to parallel criminal proceedings taking proceedings will compromise the expressed. If the facts pleaded are as well as particulars of fact underlying and Hugh Norbury QC who were groups on LinkedIn to enable Serle absolute right to appeal the order place in Zambia. This decision was consistent with innocence, it is not the allegation of a fraudulent condition both appointed as Queen’s Counsel fairness of foreign criminal proceedings. Court members and clients to discuss finding him to be in contempt (an upheld by the Court of Appeal. in March. open to the court to find fraud unless of mind. Under the CPR, there is some topical issues in Partnership and LLP analysis described in X Ltd v Morgan Ruth den Besten is instructed an allegation of fraud or dishonesty is room for doubt arising from the wording Law, Fraud and Asset Tracing and Gampian (Publishers) Ltd [1991] 1 AC 1 as junior counsel (led by Philip In Access Bank Burton J held the Directories expressly made. Thus an allegation that of CPR rule 16.4(1), which states only Contentious Trusts and Probate; as “too facile”). Rather: first, as a matter Marshall QC) for the Bank in the application had been made too late; Sophie Holcombe has a broad We were delighted that the 7th a defendant “knew or ought to have that particulars of claim must include please join us. of practical case management, the Granton proceedings. She was it ought to have been made at the chancery and commercial practice edition of the Citywealth Leaders outset of the civil proceedings, prior and assisted counsel, Paul Chaisty known” is not a clear and unequivocal a concise statement of the facts on List recommended 11 Serle Court Edited by Jonathan Fowles court did not wish to derail the trial of the recently named by Legal Week Bank’s claims if a debarring order took as a future Star at the Bar. to any witness evidence being placed QC, in Access Bank v Akingbola. CONTINUED

6 New Square, Lincoln’s Inn, London WC2A 3QS T:+44 (0)20 7242 6105 F:+44 (0)20 7405 4004 www.serlecourt.co.uk CONTINUED which the claimant relies and (so far a defendant could not have known a as is relevant) such other matters as particular fact is to plead knowledge Bribery may be set out in a practice direction. without qualification and then to set Paragraph 8.2 of PD16 provides that out the basis of the inference. Civil recoveries a claimant must specifically set out in Having apparently got the form of the his particulars of claim “any allegation pleading right, what scuppered the of fraud” and “notice or knowledge of Much has been written in the press and claimants in Seaton v Seddon was that a fact” (amongst other things). So the elsewhere on the advent of the Bribery the pleaded case, based as it was on argument ran that specifically setting Act and the criminal sanctions that has an inference from the impossibility of a out an allegation of fraud was not the grossly negligent interpretation of the brought into effect. But if your employee same as particularising the facts upon law by a solicitor experienced in the field or agent is the one who has been bribed, which the fraud allegation was based. of copyright, had no realistic chance what civil remedies are available to you Roth J had little difficulty dismissing the of success. Although this was not part to obtain some form of monetary redress? claimants’ argument. He conceded of Roth J’s analysis, his reasoning was that the drafting of PD16 could be consistent with Lord Millett’s statement improved, but found that in the context at paragraph 186 of his dissenting English law takes a broad view of what of CPR rule 16.4(1) and the overriding judgment Three Rivers District Council constitutes a bribe for the purposes objective to deal with a case justly, v Bank of England (No. 3) [2001] UKHL of civil claims. It considers that a bribe (or “secret commission”) has been which includes ensuring so far as is 16, [2003] 2 AC 1: paid where (i) the person making the practicable that a case is dealt with “There must be some fact which tilts payment (A) makes it to the agent (B) fairly, there was no real doubt that the the balance and justifies an inference of of another person (C) with whom he requirement to particularise the relevant dishonesty, and this fact must be both is dealing; (ii) A makes it to that person facts fully survived the introduction of pleaded and proved.” (B) knowing that that person (B) is the CPR. acting as the agent of the other person Although dissenting on the application It is often said that From the judgment it is not entirely clear (C) with whom he is dealing; and (iii) of those facts to the pleading before A fails to disclose to the other person how the fraud claim was put, but it was English law presumes corruption and ‘fraud unravels all’ him, this extract reflects the views of the (C) with whom he is dealing that he found to have passed the pleading test fraud in such circumstances. It also majority on the law. In other words, on has made that payment to the person notwithstanding the use of the phrase presumes that A intended that B would top of the strict pleading requirements, (B) whom he knows to be the other “knew or ought to have known” in be influenced by the bribe and was in there must be something to take the person’s agent. paragraph 18 of the particulars of claim. fact induced to act in favour of A in matter out of the ordinary. According In normal circumstances, that would When B receives or arranges to receive relation to transactions between A and Insolvency Act 1986. In the course to Roth J, a negligent lawyer, even a be sufficient to render an allegation a bribe or secret commission in the C. It does not assist either A or B to of proceedings brought by the bank, grossly negligent lawyer, is (at least of knowledge inadequate to form the course of his agency from A who deals show that B acted in C’s best interests. The privilege of it sought disclosure of communications in the circumstances of Seaton v between the defendant and his basis of a claim in dishonesty (as is clear or seeks to deal with his principal, C, In assessing damages and equitable Seddon), not such a circumstance. the agent (B) is liable to his principal solicitor in relation to the impugned from the extract from Roth J’s judgment compensation, there is a presumption It would be interesting to know whether (C) jointly and severally with A: advising on fraud transactions. Schiemann LJ regarded at the start of this article). Context is Roth J would have said the same about that the amount of loss is at least as Mr Eustice’s attempts to find a way everything, so no doubt Roth J had a a barrister in similar circumstances. (1) in restitution for the amount of great as the amount of the bribes. It is often said that ‘fraud unravels all’. of taking his assets out of Barclays’ valid basis for rejecting the criticism of the bribe or secret commission; or reach “...as being sufficiently iniquitous Therefore it is possible for C to bring In the right (or, perhaps I should say, wrong) the pleading in this respect. In another When pleading fraud, instead of for public policy to require that (2) in tort for any loss suffered by an action against B for the amount of circumstances, that is true in relation to legal recent case involving an alleged fraud pleading that a defendant “must have” communications between him and his the principal from entering into the the bribe and/or for the loss suffered (Group Seven v Rejniak & Ors), an or “ought to have” known, what the professional privilege by virtue of the so-called solicitor in relation to the setting up of transaction in respect of which the as a result of the bribe, which will be application to strike out the particulars claimant should do is plead knowledge ‘fraud exception’. The question is: what are those transactions be discoverable”, bribe or secret commission was at least the amount of the bribe. It is board of directors was sufficient to of claim led to the reformulation of the of the relevant facts before spelling the circumstances in which the usual rules of thereby avoiding the rigidity of the given or promised. then possible for C to bring a further engage the “iniquity principle”. claim so as to remove the offending out in as much detail as possible the privilege will be unravelled? test set out by Goff LJ in Gamlen. action against A on the same basis. words – “ought to have known”. basis of the inference (such as, in the C may also require either B or the As a result, until the issue is finally This is very useful where B no longer The decision has been the subject Seaton case, that every professional briber A to give an account of profits. resolved, presumably by the Supreme Whereas it is acceptable to plead has any money. Of course, if C makes of significant criticism, including by solicitor would have known the law on The basic principle is that there can might bring it into play. Neither do Court, lawyers advising in the area are fraud and then plead negligence in Until Sinclair Investments (UK) Ltd v any recoveries from B, it cannot obtain Lord Neuberger in the splendidly copyright). Not only will this help defeat be no privilege in documents or the cases speak with one voice. left with the potentially difficult task of the alternative, it is not acceptable Versailles Trade Finance [2011] EWCA double recovery and will have to give named Re McE [2009] 1 AC 908 any challenge to the pleading, it will communications which were brought having to gauge whether a course of to plead fraud on the basis that a Civ 347, it had generally been held credit for those sums in the claim In Gamlen Chemical Co (UK) Ltd v (HL) in which he expressly left open into existence for the purpose of conduct in which a client is seeking to help in any assessment of the strength that B held the bribe on trust for his against A. Rochem Ltd [1980] 124 SJ 276, the question whether the Barclays defendant knew or ought to have furthering a crime or a fraud or for engage amounts to behaviour which of the case. principal, C, but it is now the law of Goff LJ said that in order to breach case was correctly decided. known an incriminating fact. In those seeking or receiving legal advice the court might regard as iniquitous England and Wales that the claim by C privilege: “...the court must in every circumstances, one common route is Hugh Norbury QC is instructed for that purpose. So far, so easy. Despite those doubts, however, in the Barclays v Eustice sense. against B is (in most cases) a personal Lance Ashworth QC appeared case, of course, be satisfied that what to take the course adopted in Seaton in Group Seven v Rejniak on behalf of But what, in this context, qualifies as Barclays v Eustice continues to one. This has a significant impact on on behalf of the claimant in Dyson is prima facie proved really is dishonest, v Seddon of pleading that someone a defendant and was all ready to use ‘fraud’? It is long established that the be applied. Recently, for example, the remedies available to trace the Ltd v Curtis [2010] EWHC 3289 (Ch) and not merely disreputable or a failure “knew or must have known” (it appears the Seaton v Seddon / Three Rivers / term covers not just criminal, but also it was engaged by Norris J in BBGP proceeds of the bribe. successfully obtaining judgment for to maintain good ethical standards”. from the summary of the brief details of civil fraud. But perhaps predictably, Managing General Partner Ltd v Armitage v Nurse line of authority when in excess of £6m against the bribed Simon Hattan has extensive claim provided in the judgment). This It is not necessary for C to show that in the face of inevitable attempts by By contrast, in Barclays Bank plc Babcock & Brown Global Partners the claimants amended their pleading employee (and his wife). Subsequently experience of and acts regularly for the bribe was either paid or received inventive lawyers to extend the scope v Eustice [1995] 1 WLR 1238, the [2011] 2 Ch 296 to justify a finding is a dangerous approach; the better and agreed to pay the defendant’s he successfully pursued one of the both claimants and defendants in dishonestly. It is irrelevant whether of the exception, the courts have defendant was alleged to have entered that a breach of a director’s duty of approach where the essence of the costs of the strike out application. bribing suppliers without having to cases involving allegations of fraud either A or B knew what they were been reluctant to provide a precise into transactions at an undervalue fidelity in failing to disclose various claim is that it is not conceivable that go to trial. and other forms of dishonesty. doing was wrong. definition of the type of conduct that within the meaning of s423 of the matters to the remainder of the CONTINUED which the claimant relies and (so far a defendant could not have known a as is relevant) such other matters as particular fact is to plead knowledge Bribery may be set out in a practice direction. without qualification and then to set Paragraph 8.2 of PD16 provides that out the basis of the inference. Civil recoveries a claimant must specifically set out in Having apparently got the form of the his particulars of claim “any allegation pleading right, what scuppered the of fraud” and “notice or knowledge of Much has been written in the press and claimants in Seaton v Seddon was that a fact” (amongst other things). So the elsewhere on the advent of the Bribery the pleaded case, based as it was on argument ran that specifically setting Act and the criminal sanctions that has an inference from the impossibility of a out an allegation of fraud was not the grossly negligent interpretation of the brought into effect. But if your employee same as particularising the facts upon law by a solicitor experienced in the field or agent is the one who has been bribed, which the fraud allegation was based. of copyright, had no realistic chance what civil remedies are available to you Roth J had little difficulty dismissing the of success. Although this was not part to obtain some form of monetary redress? claimants’ argument. He conceded of Roth J’s analysis, his reasoning was that the drafting of PD16 could be consistent with Lord Millett’s statement improved, but found that in the context at paragraph 186 of his dissenting English law takes a broad view of what of CPR rule 16.4(1) and the overriding judgment Three Rivers District Council constitutes a bribe for the purposes objective to deal with a case justly, v Bank of England (No. 3) [2001] UKHL of civil claims. It considers that a bribe (or “secret commission”) has been which includes ensuring so far as is 16, [2003] 2 AC 1: paid where (i) the person making the practicable that a case is dealt with “There must be some fact which tilts payment (A) makes it to the agent (B) fairly, there was no real doubt that the the balance and justifies an inference of of another person (C) with whom he requirement to particularise the relevant dishonesty, and this fact must be both is dealing; (ii) A makes it to that person facts fully survived the introduction of pleaded and proved.” (B) knowing that that person (B) is the CPR. acting as the agent of the other person Although dissenting on the application It is often said that From the judgment it is not entirely clear (C) with whom he is dealing; and (iii) of those facts to the pleading before A fails to disclose to the other person how the fraud claim was put, but it was English law presumes corruption and ‘fraud unravels all’ him, this extract reflects the views of the (C) with whom he is dealing that he found to have passed the pleading test fraud in such circumstances. It also majority on the law. In other words, on has made that payment to the person notwithstanding the use of the phrase presumes that A intended that B would top of the strict pleading requirements, (B) whom he knows to be the other “knew or ought to have known” in be influenced by the bribe and was in there must be something to take the person’s agent. paragraph 18 of the particulars of claim. fact induced to act in favour of A in matter out of the ordinary. According In normal circumstances, that would When B receives or arranges to receive relation to transactions between A and Insolvency Act 1986. In the course to Roth J, a negligent lawyer, even a be sufficient to render an allegation a bribe or secret commission in the C. It does not assist either A or B to of proceedings brought by the bank, grossly negligent lawyer, is (at least of knowledge inadequate to form the course of his agency from A who deals show that B acted in C’s best interests. The privilege of it sought disclosure of communications in the circumstances of Seaton v between the defendant and his basis of a claim in dishonesty (as is clear or seeks to deal with his principal, C, In assessing damages and equitable Seddon), not such a circumstance. the agent (B) is liable to his principal solicitor in relation to the impugned from the extract from Roth J’s judgment compensation, there is a presumption It would be interesting to know whether (C) jointly and severally with A: advising on fraud transactions. Schiemann LJ regarded at the start of this article). Context is Roth J would have said the same about that the amount of loss is at least as Mr Eustice’s attempts to find a way everything, so no doubt Roth J had a a barrister in similar circumstances. (1) in restitution for the amount of great as the amount of the bribes. It is often said that ‘fraud unravels all’. of taking his assets out of Barclays’ valid basis for rejecting the criticism of the bribe or secret commission; or reach “...as being sufficiently iniquitous Therefore it is possible for C to bring In the right (or, perhaps I should say, wrong) the pleading in this respect. In another When pleading fraud, instead of for public policy to require that (2) in tort for any loss suffered by an action against B for the amount of circumstances, that is true in relation to legal recent case involving an alleged fraud pleading that a defendant “must have” communications between him and his the principal from entering into the the bribe and/or for the loss suffered (Group Seven v Rejniak & Ors), an or “ought to have” known, what the professional privilege by virtue of the so-called solicitor in relation to the setting up of transaction in respect of which the as a result of the bribe, which will be application to strike out the particulars claimant should do is plead knowledge ‘fraud exception’. The question is: what are those transactions be discoverable”, bribe or secret commission was at least the amount of the bribe. It is board of directors was sufficient to of claim led to the reformulation of the of the relevant facts before spelling the circumstances in which the usual rules of thereby avoiding the rigidity of the given or promised. then possible for C to bring a further engage the “iniquity principle”. claim so as to remove the offending out in as much detail as possible the privilege will be unravelled? test set out by Goff LJ in Gamlen. action against A on the same basis. words – “ought to have known”. basis of the inference (such as, in the C may also require either B or the As a result, until the issue is finally This is very useful where B no longer The decision has been the subject Seaton case, that every professional briber A to give an account of profits. resolved, presumably by the Supreme Whereas it is acceptable to plead has any money. Of course, if C makes of significant criticism, including by solicitor would have known the law on The basic principle is that there can might bring it into play. Neither do Court, lawyers advising in the area are fraud and then plead negligence in Until Sinclair Investments (UK) Ltd v any recoveries from B, it cannot obtain Lord Neuberger in the splendidly copyright). Not only will this help defeat be no privilege in documents or the cases speak with one voice. left with the potentially difficult task of the alternative, it is not acceptable Versailles Trade Finance [2011] EWCA double recovery and will have to give named Re McE [2009] 1 AC 908 any challenge to the pleading, it will communications which were brought having to gauge whether a course of to plead fraud on the basis that a Civ 347, it had generally been held credit for those sums in the claim In Gamlen Chemical Co (UK) Ltd v (HL) in which he expressly left open into existence for the purpose of conduct in which a client is seeking to help in any assessment of the strength that B held the bribe on trust for his against A. Rochem Ltd [1980] 124 SJ 276, the question whether the Barclays defendant knew or ought to have furthering a crime or a fraud or for engage amounts to behaviour which of the case. principal, C, but it is now the law of Goff LJ said that in order to breach case was correctly decided. known an incriminating fact. In those seeking or receiving legal advice the court might regard as iniquitous England and Wales that the claim by C privilege: “...the court must in every circumstances, one common route is Hugh Norbury QC is instructed for that purpose. So far, so easy. Despite those doubts, however, in the Barclays v Eustice sense. against B is (in most cases) a personal Lance Ashworth QC appeared case, of course, be satisfied that what to take the course adopted in Seaton in Group Seven v Rejniak on behalf of But what, in this context, qualifies as Barclays v Eustice continues to one. This has a significant impact on on behalf of the claimant in Dyson is prima facie proved really is dishonest, v Seddon of pleading that someone a defendant and was all ready to use ‘fraud’? It is long established that the be applied. Recently, for example, the remedies available to trace the Ltd v Curtis [2010] EWHC 3289 (Ch) and not merely disreputable or a failure “knew or must have known” (it appears the Seaton v Seddon / Three Rivers / term covers not just criminal, but also it was engaged by Norris J in BBGP proceeds of the bribe. successfully obtaining judgment for to maintain good ethical standards”. from the summary of the brief details of civil fraud. But perhaps predictably, Managing General Partner Ltd v Armitage v Nurse line of authority when in excess of £6m against the bribed Simon Hattan has extensive claim provided in the judgment). This It is not necessary for C to show that in the face of inevitable attempts by By contrast, in Barclays Bank plc Babcock & Brown Global Partners the claimants amended their pleading employee (and his wife). Subsequently experience of and acts regularly for the bribe was either paid or received inventive lawyers to extend the scope v Eustice [1995] 1 WLR 1238, the [2011] 2 Ch 296 to justify a finding is a dangerous approach; the better and agreed to pay the defendant’s he successfully pursued one of the both claimants and defendants in dishonestly. It is irrelevant whether of the exception, the courts have defendant was alleged to have entered that a breach of a director’s duty of approach where the essence of the costs of the strike out application. bribing suppliers without having to cases involving allegations of fraud either A or B knew what they were been reluctant to provide a precise into transactions at an undervalue fidelity in failing to disclose various claim is that it is not conceivable that go to trial. and other forms of dishonesty. doing was wrong. definition of the type of conduct that within the meaning of s423 of the matters to the remainder of the

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