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146 Deception at Work

The civil law in the UK

SCOPE

The civil law deals with such things as breaches of contract and other wrongful acts or ‘torts’.
Most frauds result in breaches of the civil law and remedies can be sought in addition to crimi-
nal prosecution. It is important to recognize that the civil and criminal paths to recovery are
not mutually exclusive but, in fact, complement each other. The primary focus of the civil law
is to put the victim back into the position he would have been in but for the wrongful act. It
is a bit like the Match of the Day action replay, but damages can be substantial.

Examples of civil law violations include:

• breach of employment or other contracts;
• negligence;
• breach of fiduciary duties;
• fraud.

Also attempts to commit a breach of contract, conspiracy or failure to act as agreed may be
actionable under the civil law.

Civil actions may be brought to obtain compensation or injunctive relief preventing the
continuation of an undesirable act (such as trespass), requiring a person or company to per-
form a specific act (such as complying with a contract) or to disclose evidence. Civil courts
cannot impose custodial penalties except for perjury or contempt of court.

HOW ACTIONS ARE STARTED

Routine actions

Civil actions are normally commenced by private citizens, government agencies and organi-
zations issuing a claim form (possibly supported by statements) through their lawyers setting
out the nature of the complaint. The claim form obviously gives the defendant notice that
trouble is brewing and allows him to take defensive steps, including interference with wit-
nesses and hiding his assets.

Pre-emptive actions

The law recognizes that people accused of wrongful acts, and especially fraud, are unlikely
to make a full and frank disclosure in the normal course of events. It is therefore possible for
claimants to carry out a pre-emptive strike by asking a High Court or other judge – ex parte,
without the knowledge of the third parties involved – to issue orders of the type described in
Table 5.2.

Pre-emptive orders are often the first indication a defendant has that civil action has been
started and they are intended to take him by surprise.

To obtain such an order the claimant’s lawyers have to convince a judge, sitting ‘in camera’,
that there is ‘good arguable case’. Most English judges are well-versed in fraud and realize that
the evidence available to support an application is likely to be less than complete. In fact, if
the evidence were sufficient, there would be no need for a pre-emptive order.

Until the human rights stuff came on the scene, judges would apply what was known as
the Cynamid test and decide whether it was just and reasonable to grant an order. Now the