pcb © steven philippsohn 2007 steven philippsohn head of commercial fraud pcb litigation llp case...

PCB

© Steven Philippsohn 2007

Steven PhilippsohnHead of Commercial Fraud

PCB Litigation LLP

Case Management in Multi

Jurisdictional Fraud Cases

Key Factors to be Considered

Fraudnet

Rio de Janeiro – April 2007

PCB


● Retained by global, governmental and national organisations in relation to fraud matters

● Currently retained on cases involving:-

Switzerland, Gibraltar, USA, UK, Portugal, Germany, Belize, Bermuda, Italy, Lebanon, Ukraine and Russia

PCB Litigation LLP

PCB


PCB Litigation LLP

2007

Retained to act in multi-jurisdictional suits including:-● For European criminal prosecutor in relation to

civil remedies;● On application to European Court of Human

Rights to overturn decisions made by an Eastern European Court;

● For HM Customs & Excise;● In Joint Venture dispute involving 10 jurisdictions

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Movement towards justice without borders:

Accountants in Cyprus and India have been charged by the SEC with failing to employ proper procedures which would have detected fraud

Increasing rights of investigation and disclosure

Extradition/Arrest Warrants

Attacking Responsibility for Unaccountable Wealth

Recent Developments-

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● Barclays Bank was recently forced to give up the details of hundreds of customers suspected of not declaring foreign savings as taxable UK earnings;

● The order is the largest of its type ever granted against a bank and followed major investigations by HM Customs and Excise;

● Evidence gleaned by FSA enquiries can be used in private law suits.

[Real Estate Opportunities Ltd v Aberdeen Asset Managers Jersey Ltd & Ors [2007] EWCA Civ 197]

Recent Developments

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Strategy

● Assess and Develop Evidence

● Usually start with incomplete picture

● Various effective options by which further evidence is collated

● Appointment of Specialists

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Investigating Fraud

● Court’s interpretation of European Convention on Human Rights

[Jones v University of Warwick [2003] EWCA Civ 151]

● Covert monitoring may be admissible if:-● Evidence went to the heart of the case;● There were no other less intrusive means of

obtaining that evidence;● There may be penalties in costs and loss of

claim to privilege

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Investigating Fraud

● In early 2006, Hewlett Packard’s chairwoman, Patricia Dunn, ordered an investigation into media leaks about corporate strategy, HP’s interest in buying another company and discussions concerning the next CEO.

● The external agency employed to carry out the investigation used a method called “pretexting”. This involved posing as someone else in order to acquire the telephone records of reporters and board members suspected of involvement in press leaks.

● Criminal charges, including conspiracy and identity theft, against Dunn were dropped in March 2007 although she had, by then, been forced to resign as chairwoman.

[News znet.com – 15.03.07]

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Strategy

● Which is the Appropriate Court?

● Where the assets are situated?

● Current legal policies within the jurisdiction

● Level of co-operation offered by the foreign court

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Strategy

● Whether the Recovery should be Pursued?

● Commercial Realities

● Publicity Element

● Statutory Obligations

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Strategy

● Start of the Process

● The Fraudster is not alerted

● Immediate access to and speedy decision making by the Court

● Criminal Prosecution and/or Civil Recovery?

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Orders that can be Granted by the Foreign Court

● Freezing Orders● Search Orders● Orders for Examination● Surrender of Passport● Committal to Prison● Appointment of a Receiver● Summary Judgment● Criminal Prosecution

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● Evidence that Respondent would not comply with Order for payment of over £10m

● Witness in one country disclosed that Respondent had been imprisoned in another country

● Lawyers in that country revealed that not only had he been imprisoned but that he had fled that Country despite an Order prohibiting him from doing so

● Respondent had forged material documents

Examples of Case Management

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The Respondent had assets in:-

● Switzerland;

● Belgium;

● Israel; and

● Belize

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● Almost simultaneously obtained:

● Interim Judgment for approx £6 million of the claim

● Freezing Order for balance of £4 million including costs of recovery of £300,000.

● Order for disclosure by Respondent of his assets

● Order for the attachment of certain of the assets overseas in respect of Judgment Debt and for the “freezing” of assets in respect of balance

● Order for Examination of Respondent


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● Within a few weeks:

● Respondent sought to obtain lifting of freeze on basis of payment of £6 million which was rejected

● A number of increased offers followed so that by the day of the Hearing of the Examination, he had paid all but £1 million of the claim

● On learning that the Respondent was not in Court to be examined. the Judge indicated the possible issue of a Warrant of Arrest. At that stage, the Respondent’s lawyers revealed that they had just received £1 million which they undertook to pay into a joint account as security

● Payment or security for total amount!


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● The case of the global sports

personality;

● Action taken in various jurisdictions;

● Substantial percentage of stolen monies

recovered from those that allowed fraud

to occur.


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Bringing Down the Phishers

● Finding the origin

● Following the digital trail

● Approaching the ISP

● What succeeded?

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Steven PhilippsohnHead of Commercial Fraud

PCB Litigation LLP

Case Management in Multi

Jurisdictional Fraud Cases

Key Factors to be Considered

Fraudnet

Rio de Janeiro – April 2007

pcb © steven philippsohn 2007 steven philippsohn head of commercial fraud pcb litigation llp case...

Documents

pcb steven philippsohn

privilege slide

foreign court slide

recent developments

excise evidence

european court of human

eastern european court

rights of investigation