Legal Professional Privilege cannot be defeated by the FRC’s interpretation of its disclosure regime
Fraud is a major threat to citizens, businesses and the government. The National Fraud Authority has estimated that the total annual losses from all fraud against all types of victims is now at least £73bn. The Fraud Advisory Panel has released its main recommendations today on “obtaining redress and improving outcomes for the victims of fraud”. The full report is available here.
The Fraud Advisory Panel has been leading a civil justice initiative since the end of 2011 as part of the UK’s new national counter-fraud strategy “Fighting Fraud Together”. It aims to encourage fraud victims (especially individuals and smaller businesses) to make more use of the civil Courts for asset recovery purpose, particularly in relation to cases which are unlikely to attract a criminal investigation or prosecution.
The report highlights how fraud can have devastating financial, physical, emotional and psychological effects on victims and how it can cause businesses to suffer reputational damage, job losses and even total collapse.
Interesting points to note from the report (non-exhaustive list)
There are many other interesting points to note from the report, including all of the Fraud Advisory Panel’s recommendations.
The report rightly points out that the Police’s inability to investigate all instances of fraud may be acting as a disincentive for certain victim groups (particularly organisations) to report their experiences to official agencies. Disparities between the nature/level of fraud investigated by regional Police forces are also known to exist.
The report also highlights the fact that many victims have no understanding of the differences between the criminal and civil justice systems. Some of them end up dealing with matters on their own or take no action at all.
They simply remain unaware of the full range of legal options available to them on the civil front. These include for instance civil litigation, asset recovery strategies, insurance claims, dispute resolution procedures, insolvency proceedings etc. Certain strategic applications before the civil Courts such as for instance freezing, disclosure and other orders may be worth considering to maximise the chances of asset recovery.
These options can be effectively used as an alternative to, or in combination with, criminal proceedings.
It is also important for victims to understand that, in England and Wales (contrary for instance to civil law jurisdictions such as France), confiscation and other orders which may be obtained on the criminal front are not aimed at compensating victims (unlike civil asset recovery strategies and litigation). They are aimed at depriving fraudsters of the financial benefits obtained from their criminal conduct.
If in doubt, it is always worth obtaining a fraud professional’s initial advice both on the civil and criminal fronts before considering whether to write off the loss for commercial reasons. This is particularly relevant to organisations. An investigation of a fraud may indeed lead to the discovery of the existence of a wider fraud, with internal/external collusion, which may have been going on and remained undetected for years.
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