Obtaining evidence from parties and non-parties

The need for powerful tools to gather evidence is particularly important in fraud cases. By their nature, frauds will often involve complex acts of concealment by the fraudster both as to his underlying acts complained of and the whereabouts of any proceeds and other assets. As a result, fraud litigation tends to involve a very high focus on forcing defendants and third parties to disclose evidence. Unlike many other forms of litigation, this process of factual investigation often focuses on the period before litigation is commenced so as to avoid or reduce the risk that evidence and assets will disappear.

The series is based on an address given at the EF Legal 6th annual Fraud and Asset Tracing conference in May 2001. For more information about Euro Forum events visit www.ef-legal.co.uk; tel +44 (0) 20 7878 6878.

Practical issues on disclosure in fraud cases

Despite the rules referred to in the previous articles in this series, one can expect when acting for a claimant in a fraud action that notwithstanding the efforts of his solicitors, the defendant will not in fact make proper disclosure. Instead, the disclosure that is provided is often selective and incomplete. The defendant will often also contend that relevant documents have been destroyed or can no longer be found. The Civil Procedure Rules (CPR) and the Commercial Court Guide provide some weapons to challenge these contentions, eg, the disclosure statement, the ability of the court to require that the disclosure is verified on affidavit or witness statement, and the possibility of cross-examination. However, the reality in fraud cases is that some defendants will destroy or hide documents and it is relatively rare to obtain full disclosure. Some practical tips for claimants are as follows: