Fraud can best be described as the deliberate or intentional use of misrepresentation, deception, or dishonesty to deprive, in order to make a gain or achieve an advantage for someone or something or to disadvantage or cause loss (usually financial) to another person or party. That said, it is not always necessary that a scenario which has, at its heart, elements of dishonesty, requires establishing actual dishonesty on the part of some or all of the protagonists in order to seek a civil remedy.
Fraud is defined differently depending on whether you are acting in a civil or criminal context, and even within civil and criminal law, the definition changes depending on the type of claim or offence being pursued.
Fraud in a criminal context is a criminal offence capable of being prosecuted in the criminal courts and resulting, if successfully prosecuted, in a criminal conviction and punishment, including imprisonment. In criminal proceedings, each element of the offence must be proven to the criminal standard, i.e., ‘beyond reasonable doubt’.
Fraud, in a civil sense (sometimes called ‘civil fraud’, sometimes called ‘commercial fraud’) usually takes either the form of making a false statement or the suppression or withholding of the truth, where there is a duty to disclose the truth. Where representations are involved, proof of absence of actual and honest belief is all that is necessary. However, English law does not recognise a single cause of action which could be described as civil or commercial fraud. Civil fraud is only actionable as a specific claim, which must be proven to the civil standard of proof, i.e., ‘on the balance of probabilities.
IS FRAUD A CRIMINAL OR CIVIL OFFENCE
In the criminal context, fraud is an offence which is capable of being prosecuted in a criminal court, and which leads to a criminal conviction and imprisonment or a fine. All elements of fraud must be proven ‘beyond reasonable doubt’.
In the civil context, fraud is usually a case of someone misrepresenting or withholding information or the truth when in a position with a duty to disclose the truth; and by so doing gaining a benefit for themselves or others. Claims brought in a civil context must be proven ‘on the balance of probabilities’ (i.e., more likely than not).
IS THERE A DIFFERENCE IN THE BURDEN OF PROOF IN CIVIL FRAUD AND CRIMINAL FRAUD MATTERS?
In civil proceedings the burden of proof is on the victim to prove “on the balance of probabilities” that the defendant committed the alleged fraud.
In criminal proceedings the burden of proof is on the prosecution to prove “beyond reasonable doubt” that the defendant committed the alleged fraud.
WHAT SANCTIONS CAN BE IMPOSED ON A DEFENDANT?
In civil proceedings a successful victim may obtain an order that the defendant repay the money/assets taken and or pay damages to the victim. There is no sanction by way of punishment.
Depending on the offence for which the defendant is convicted, the court in which he is convicted and the value of the fraud, a criminal Judge can impose a prison sentence of up to 10 years and/or an unlimited fine.
OUR CIVIL FRAUD SOLICITORS OFFER UNRIVALLED EXPERTISE IN THIS FIELD AND HAVE A LONG-STANDING POSITION AS THE PRE-EMINENT SET FOR CIVIL FRAUD.
Madison Legal commercial litigation barristers are experts in dealing with cases concerning bank-related fraud claims including in relation to allegations of rate rigging, fraudulent misrepresentation, claims relating to conspiracy, disputes surrounding misappropriation of assets, claims arising out of investments in bogus schemes, breach of fiduciary duty claims and claims arising from emerging markets or involving complex jurisdiction challenges.
Members have considerable experience in dealing with Russian, CIS, and Chinese parties, in cases raising every kind of fraud claim from dishonest assistance to conspiracy to defraud and including breaches of fiduciary duty and deceit. Large energy and natural resources claims are a speciality, as are claims involving offshore and onshore elements.
Civil fraud proceedings typically involve extensive interlocutory applications for injunctive relief including where appropriate the obtaining of world-wide freezing orders and ancillary relief. Fountain Court’s members are familiar with the suite of tools used by sophisticated litigation teams to safeguard their clients’ interests in making or defending such claims.
Our work includes cases relating to:
- Bank related fraud cases including rate rigging
- Crypto claims
- Fraudulent misrepresentation
- Claims involving complex jurisdiction challenges and privilege issues
- Misappropriation of assets
- Investment in bogus schemes
- Breach of fiduciary duty
- Claims arising from emerging markets and/or natural resources
HOW MADISON LEGAL CAN ASSIST
Our commercial litigation team has considerable experience conducting your arbitration, litigation, and freezing orders. If you have a potential claim or are facing a potential dispute matter, please do not hesitate to contact us for advice, send us an e-mail. Alternative contact us via LinkedIn.