How can I find the golden egg? Part 2: ask the Easter bunny (or third parties)

23 April 2019. Published by Davina Given, Partner and Emma West, Senior Associate

If a fraudster has successfully hidden the golden egg, now that the big day is over the Easter bunny (or in practical terms, third parties such as banks) may be able to assist the hunt.

As well as getting information from the suspected fraudster, and checking up on his affairs through an enquiry agent, the unsatisfied egg-hunter can ask the court to make two orders which can be an enticing prospect, even for those who have over-indulged during the bank holiday weekend:

   •     Norwich Pharmacal disclosure orders. These orders oblige a third party who has been mixed up in the wrongdoing (whether knowingly or innocently) to provide specific information for a range of purposes, most typically to allow the victim to work out whom to pursue. In recent cases, they have been used to find out from a bank the identity of a potential rogue trader[1], to obtain from a potential wrongdoer documents showing the nature and extent of the wrongdoing[2] and to confirm the identity of someone who gave instructions to delete a social media account.

   •     Bankers Trust orders[3] . These orders oblige a bank to disclose information, such as the flow of funds through a suspected fraudster's bank account, to help a victim of fraud find assets in which they claim a proprietary interest. But they are by no means limited to banks: in recent cases, a Greek businessman sought such an order to find out from an auction house, a jeweller and a safety deposit company about jewellery potentially discussed or left with them by his estranged wife, which the businessman said she had misappropriated from his family home.[4]

An egg-hunter will need to work hard to convince the court to make either of these orders. Requests should be targeted and strong evidence is needed that a fraud has taken place. The egg-hunter will also need to give the Easter bunny – or the third party – a carrot, by paying their costs of complying with the disclosure order and compensating them for any losses suffered.

If the suspected fraudster has hopped overseas it is still possible to obtain information about them from third parties in England, though getting information from third parties abroad may be a much harder eggs-ercise.

[1] Domestic and General Group Ltd v Bank of Scotland Plc [2018] EWHC 3604 (QB)
[2] Benhurst Finance Ltd v Colliac [2018] 6 WLUK 641
[3] Named after the Court of Appeal decision in Bankers Trust Co v Shapira [1980] 1 W.L.R. 1274
[4] Kyriakou v Christie Manson and Woods Ltd [2017] EWHC 487 (QB

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