Page 147 - Deception at work all chapters EBook

148 Deception at Work

Production orders can be issued on the defendant’s bankers, financial advisers and others
from whom the claimant believes useful evidence can be obtained. They are very powerful
weapons in the fight against fraud.

FURTHER PROCESSING

In the last couple of years the civil process has been streamlined (based on the Civil Procedure
Rules) and involves statements of truth, discovery, interrogatories (written questions and an-
swers) and submissions by both sides before trial. Such exchanges ensure that there should be
few surprises at trial. There is often a mediation stage, when the judge will try and bring the
sides together to reach a settlement before trial or during the trial itself.

Despite the improvements, proceedings can be very slow and costly as both sides take
increasingly intransigent positions. Thus the main practical benefit of civil proceedings is to
discover evidence and to bring the parties to negotiate. A full-blown trial should be avoided,
almost at all costs. The better litigation lawyers are excellent negotiators.

Before litigating, dig two graves

STANDARDS OF PROOF

To succeed with a civil case the claimant has to prove its case on a ‘balance of probabilities’ and
may succeed where a parallel criminal prosecution fails. This is an important distinction

Trial judges are rightly concerned with the issue of fairness and this is critically important
when injunctive relief or pre-emptive orders are being sought. The claimant must present all
of the relevant information – whether it is good or adverse – and if it fails to do so the injunc-
tion will fail.

ST MERRYN MEAT AND OTHERS V HAWKINS AND
OTHERS QB2001

In this case injunctions were granted on rights to privacy under article 8(2) of the
the basis that evidence had been obtained Human Rights Act.
by intercepting the defendant’s office
telephone. It subsequently transpired that The judge discharged the orders, not
this was untrue and that his home telephone because of the human rights violation, but
had been tapped illegally, which the court because he had been misled. It is possible
viewed as a possible infringement of his that had he known the truth from the outset,
he would have maintained the orders.

It is critical that courts are not misled for, if they are, the claimant can be very heavily
penalized. Thus the judge should be advised at the earliest possible opportunity of anything
that is unusual or could cause a problem.

DISCOVERY AND DISCLOSURE

In routine cases the parties go through a process of ‘discovery’, which means that any evi-
dence in their possession has to be disclosed to the other side. For example the defendant might