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Commercial Fraud

Commercial fraud law: area of practice (barristers)

Commercial fraud cases are hard fought and have a strong element of human interest, says James from 4 Pump Court.
Fraud cases only form a small part of a barrister's caseload. They will also get involved in straightforward commercial and contractual work.

Fraud happens more than you’d think (and it’s easier than you’d think; often, frighteningly so). Commercial law cases involving allegations of fraud are surprisingly common and are hard – and often viciously – fought by both sides.

The role of a barrister is to assimilate large amounts of information (much of it financial, such as accounts) and take a view on the conflicting witness accounts, then advise the client as to whether or not an allegation of fraud is likely to be made out. This can be extremely difficult, whether you are acting for the alleged fraudster (who will not like being told that there is a likelihood that he or she will be found to be deceitful) or for the victim (who will not take it well if you have to explain that he or she may not succeed in pinning the case on the opposition). But if you want to specialise in commercial disputes, with the opportunity for trial work and a strong element of human interest, then commercial fraud is for you.

A commercial fraud law barrister's work

Allegations of fraud arise in all kinds of different disputes, but most commonly in relation to financial agreements (such as loans or sale and purchase contracts) or financial instruments (such as cheques, bonds, bank guarantees, warranties, indemnities and so forth). Clients include large financial institutions, high-street and investment banks, as well as small companies. On the other side of the fence, you will also act for individuals accused of defrauding other people.

Fraud cases involve almost all kinds of hearings, including interim applications such as freezing and search orders, summary judgment applications (applications to strike out claims or defences that have no prospect of success) and full-blown trials. The detailed nature of the work means that trials are often some of the longest in the court list and can last up to several months. There will often be a series of interlocutory skirmishes as well, involving tracing claims (claims to follow and investigate where stolen money has ended up) and injunctions. A typical large fraud case may involve several months of preparation with a month or more in trial. Such cases will usually involve substantial amounts of money, rafts of documentary evidence and a large cast of witnesses. Both sides will probably retain a QC and several juniors.

The range of legal problems that fraud cases involve is as wide as your imagination: misrepresentation, conspiracy, corporate responsibility issues, directors’ duties, insolvency, banking law, trusts and fiduciary duties, the tracing of assets and cross-border investigations may play a part. Often, a fraud case will involve all of the above.

What makes commercial fraud disputes unique is the mix of detailed commercial work with a strong element of human interest. Seeing some of the best advocates at the Bar cross swords with professionals, company directors and bankers, as well as with out-and-out fraudsters, means that the work is always interesting.

Fraud cases only form a small part of a barrister’s caseload, alongside other more conventional (and less interesting!) disputes. A barrister involved in commercial fraud work will do a range of other types of straightforward commercial and contractual work, much of it involving the same type of financial instruments as are considered in a fraud case.

Is commercial fraud law recession-proof?

The arrival of the internet and electronic communications means that the opportunity to commit fraud, often on a large scale, is more widespread than ever. Fraud is in large measure ‘recession proof’. When the economy is buoyant the amount of economic activity increases, and with it opportunities for the unscrupulous. In the event of an economic downturn, the need for cash flow – however obtained – becomes all the more pressing for businesses that find themselves in financial difficulty. For some, the temptation to obtain funds by whatever means necessary can prove too much.

What skills do commercial fraud law barristers need?

  • A strong interest in commercial work.
  • The ability to think laterally and deal with multiple legal and factual problems.
  • The dedication and capacity to work long hours, both in and out of trial, as well as the ability to drop everything for emergency applications such as freezing orders.

Commercial fraud law pupillages

Pupils are not expected to master heavy cases straight away. If your pupil supervisor is involved in a large fraud case you will be expected to carry out tasks such as producing notes on the evidence and researching the law, as well as providing suggestions for cross-examination. You will also have the opportunity to work as part of a team, often with senior juniors and QCs.

Types of law practised

  • Contract law.
  • Tort.
  • Trusts.
  • Restitution.

JAMES BOWLING is a barrister at 4 PUMP COURT. He studied modern history at Merton College, Oxford before completing the CPE. James was called to the Bar in 1999 and practises in commercial, construction and energy law and has acted in a large number of commercial fraud cases.