Here are some reasons why our clients choose civil litigation in cases of fraud and breach of trust
- The fraud may give rise to civil remedies but a criminal prosecution may prove more difficult due to jurisdiction, damages or difficulty meeting the higher criminal standard of proof.
- Civil proceedings are designed primarily to effect a financial recovery rather than to obtain justice for victims (albeit both can be achieved in criminal proceedings too). Civil proceedings may better reflect an overall objective.
- Procedures for identifying what has become of the proceeds of the fraud may be more readily available at or prior to the commencement of civil proceedings than criminal proceedings.
- In cases of fraud and breach of trust, civil proceedings often enable Claimants to assert “proprietary claims” which is useful when following the proceeds of fraud and to enable victims to claim priority to them in the insolvency of anyone who has received them. Legislation also exists to prevent the fraudsters claiming privilege against self-incrimination to stop the Claimant discovering what has happened to his or her money.
- It is generally easier to retrieve the proceeds of fraud from recipients who have received them innocently in civil proceedings than in criminal proceedings.
- It will be generally less problematic to put a halt to civil proceedings as part of a settlement with the fraudster than it will be to end criminal proceedings.
- Procedures exist to freeze assets in this country, in appropriate cases, in support of civil proceedings in any other jurisdiction in the world (albeit this is also possible in criminal law). Similarly, many other jurisdictions, particularly in the EU, will freeze assets pending the outcome of civil litigation in this country.