Thought Leader – Fraud and Deceit – Byrne & Partners

One of the most prominent but less publically acknowledged crimes over the last few decades has been fraud, which in recent years has taken centre stage in large-scale political and financial issues, and been the bane of many nations’ governments, especially as the benefits of certain jurisdictions make it easier to hide wrong-doings and deceive the system.

 Here to discuss the litigation and defence work behind such large-scale fraud and deceit matters is Yvonne Jeffries, a Partner at Byrne & Partners. Yvonne delves into the best ways to strategize the lawyering work behind fraud, and talks us through hers and the firm’s thought leadership in this complex legal segment.

You have dealt extensively with prosecuting and defending civil fraud claims; what are often the challenges involved in these cases?

Each case turns on its own circumstances. That said, one of the most common challenges in civil fraud cases is responding to attempts to inflict practical and reputational damage to one’s client. This may include seeking intrusive and restrictive interim injunctive relief such as freezing orders and search orders, often accompanied by a damaging media campaign. These measures are designed to harm your client and stop him conducting business freely, with the endgame being to force an unfavourable settlement – or worse.

From a claimant’s perspective, the pursuit of civil fraud claims often requires assets to be traced internationally. Civil fraud claims frequently throw up questions of foreign law and require intelligence to be gathered on a defendant’s assets. Thought often needs to be given to how one challenges the legitimacy of mechanisms used by defendants to place assets out of reach.

How does your 30+ years of experience help navigate these issues what key advice would you give to the potential Fraud Lawyers of the future?

My Experience has taught me that a lot can, and does, change in the course of a long complex case. Even the most horrible ones which look like stomach-churning losers at first, but are often retrievable so long as one has the stamina to keep at it. In terms of advice I would give to would-be fraud lawyers:

• Client relationship: it is essential to have a relationship of trust and confidence. This can be the difference between winning and losing. Over the years, I have built very strong relationships with clients who know they can trust me to fight tooth and nail to protect their interests but also to give them a realistic picture of how their case is shaping up – even if they sometimes don’t want to hear it!

• Strategy: Outcome and not process is key. The objective is usually simple: how to ensure your client recovers his money or legally gets to keep it. This ought to inform the strategy – and not process, which is important but not paramount. A successful strategy requires mastery of the detail, both factually and legally and using this to win.

• The right team: Having the right team is also key. This type of litigation requires highly-motivated individuals with varied attributes, including strong technical ability, independent problem-solving skills, the ability to work well under pressure and as part of a team. Having the right barrister team is also essential. A heavy civil fraud case often also requires the involvement of good investigators and reputation management specialists. I am able to call on strong contacts in these disciplines.

• Experts: It is essential to instruct the right experts for your case as they can often be the difference between winning and losing. In my experience, it is worth spending time and effort on the selection process and it’s important to be ready to change horses if, for one reason or another, the one you have isn’t shaping up as expected, rather than hoping that everything will miraculously work out on the day.

• Energy and resilience (!): Whilst a case may look and feel pretty hopeless, it isn’t over until it’s over – a lot can change in the course of a case. It is vital to remember, even at the most testing moments, that hard work, energy, doggedness and preparation will always stand one in good stead no matter how difficult the task may seem and how well-resourced the opponent is.

What has been your most prominent and impacting achievement in the legal field of Fraud and Deceit?

One of my proudest achievements recently was securing a complete victory for Abdourahman Boreh in the litigation pursued against him by the Republic of Djibouti.

The background to the claim spanned a decade and Mr Boreh faced extremely serious allegations of corruption and abuse of public position. All of this was against a backdrop of uncertainty in terms of the operation of Djibouti law.

This already difficult scenario was exacerbated by the use of a domestic terrorism conviction, made in absentia, to obtain an Interpol Red Notice and Worldwide Freezing Order against Mr Boreh and the brandishing of the underlying judgment to the media, financial institutions and international security organisations, including US Homeland Security.

The key breakthrough came with the discovery that the evidence underlying the terrorism conviction was fatally flawed. We subsequently applied to discharge the freezing order. After a 5-day hearing, during which lead Gibson Dunn Partner Peter Gray was cross-examined, Mr Justice Flaux held that the court had been deliberately and dishonestly misled by Gray and Djibouti, and set aside the freezing order.

The setting aside of the freezing order dramatically altered the momentum of the litigation and the court’s perception of the parties began to shift. In the run-up to and early stages of trial, the Republic dropped all but two of 21 heads of claim originally pursued. After a 10-week trial, the remaining claims were dismissed and Mr Boreh was fully vindicated in his contention that the entire litigation had been the culmination of a politically motivated campaign against him.

I have fought larger and more legally complex cases in the past but not one that has been as all-consuming. It was extremely satisfying to take on and beat a sovereign nation that had far greater resources at its disposal but had seen fit to behave with such impropriety.

In terms of cross-border Fraud and Deceit disputes, what are the biggest talking points and what kind of problems can arise?

A point of personal interest is the use of the English courts, most typically the Commercial Court, by foreign high net worth individuals and sovereign nations to resolve high value cases.

In a couple of recent decisions, the courts have made it clear that parties to litigation here, no matter their status, are expected to play by the rules.

I experienced this first-hand in the Boreh case. Djibouti had a rude awakening when its impropriety led to the discharge of its freezing order. Matters were compounded when the President, Djibouti’s key witness, declined to attend to give evidence despite the court having indicated that he should. The fact that he announced that he wouldn’t be attending in a letter to the judge, referencing his concerns at the precedent his attendance might set, was not well received and his statements were afforded limited weight.

A similar approach was taken in Estrada v Al-Juffali ([2016] EWHC 213 (Fam) and [2016] EWCA Civ 176), albeit in the context of a matrimonial financial relief application as opposed to a civil fraud action. In Al-Juffali, a wealthy Saudi businessman attempted to resist the application against him on the basis of diplomatic immunity because of his role as permanent representative to the International Maritime Organisation for St Lucia. His claim to diplomatic immunity was rejected by the High Court who described it “an entirely artificial construct.” Al-Juffali later appealed this decision, which received criticism from Phillip Hammond, then the Foreign Secretary, who intervened in the appeal. The Court of Appeal found that the High Court had been wrong to hold that Al-Juffali was not, in principle, entitled to immunity. However, it dismissed his appeal on the basis that he was not entitled to immunity because he was permanently resident in the UK and the claim did not relate to any official acts he was performing in the exercise of his functions.

The Foreign Secretary’s intervention shows how sensitive this issue is. These decisions also illustrate the robustness of the English judiciary and how its independence will not be interfered with.

Is there anything else you would like to add?

I would like to say a few words about Byrne and Partners. We consider that we provide a very attractive service. As a litigation boutique, we can keep costs competitive and costs arrangements flexible without compromising on quality. We ensure that there is always hands-on partner involvement, which gives clients great comfort. We receive a lot of our instructions via referrals from high-profile city firms who know we will do a good job but don’t have to worry that we’ll steal their clients. We are used to going up against some of the largest Magic Circle and US firms and getting excellent results. The breadth of our experience in civil and criminal fraud matters means that we have a fantastic network of contacts. Finally, we are absolutely committed to achieve the best outcomes possible for our clients.