Refining Fraud Litigation: Lessons from Brick Court’s 2025 Focus on Fraud Conference (Royal Society of Arts, London)

This year’s Focus on Fraud conference was a reminder that English courts are refining, not reinventing, the fraud litigation toolkit. From pleading and proof to privilege and freezing orders, the message was one of sharper precision, tempered by judicial restraint.

Fraud isn’t a cause of action – and never was.
As several speakers observed, “civil fraud” remains a convenient shorthand for a collection of doctrines – deceit, conspiracy, dishonest assistance and statutory offences among them – each with distinct ingredients. Recent cases such as Alta Trading v Bosworth and Suppipat v Narongdej underline that context and commercial logic still govern how dishonesty is inferred.

Freezing orders at fifty.
Half a century after Mareva, the debate over what amounts to a “good arguable case” continues. The prevailing view favours The Niedersachsen test – “more than barely capable of serious argument” – over Brownlie’s higher bar. The new model order refocuses on unencumbered value, strengthens third-party safeguards, and provides applicants must undertake to compensate third parties adversely affected.

Corporate crime reform with civil consequences.
The Economic Crime and Corporate Transparency Act 2023 (in force from 1 September 2025) may reshape both criminal and civil fraud landscapes. Its “failure to prevent fraud” offence and expanded attribution to senior managers were designed for prosecutors but will inevitably influence conspiracy pleadings and legal practitioners’ approaches to disclosure and risk management in commercial disputes.

Privilege under pressure.
In Al Sadeq v Dechert, the Court of Appeal broadened the iniquity exception, confirming that privilege will not shield communications created in furtherance of underhand conduct. Lawyers should expect greater scrutiny of privilege decisions, particularly where disclosure reviews unearth potentially “tainted” communications.

Proof and persuasion.
Gestmin still dominates: documents outweigh memory. For advocates, credibility depends less on performance and more on coherence with the documentary record. Compliance with PD57AC is now seen as part of that evidential integrity.

Fraud in arbitration.
As Justice Brandeis observed, “sunlight is the best disinfectant,” meaning that transparency deters corruption. Arbitration, by contrast, is a confidential process – one that can sometimes allow misconduct to unfold without the disinfecting properties of sunlight. The Arbitration Act 2025 codifies separability (s 1), confirming that an arbitration clause will generally survive even where the underlying contract was procured by fraud – unless the clause itself was.

In P&ID v Nigeria, Mr Justice Knowles upheld the principle that bribery in the procurement of a contract does not, on its own, vitiate an arbitral award. However, he found two “process-attacking” grounds – perjured witness evidence and continuing bribery of Nigerian officials during the arbitration itself – sufficient to set the award aside. The once-blanket rule that corruption of the underlying contract or parties could never justify annulment is fading, though the threshold remains high to deter sore-loser challenges.

Following Soleimany, Betamax and AJU v AJT, courts and tribunals are showing greater readiness to scrutinise arbitral integrity. Practically, parties alleging fraud should raise it early and seek the relevant procedural orders, while arbitrators are encouraged to follow the ICC’s red-flags guidance and draw adverse inferences where warning signs appear.

The common thread.
Across every stage – from formulation to enforcement – the courts expect fraud litigation to be disciplined, documentary and ethically robust. As one judge famously put it, “fraud vitiates everything” – but an under-baked case can do much the same.

Author’s note:
Highlights drawn from Brick Court’s Focus on Fraud conference (30 September 2025), featuring panels chaired by leading silks including Tim Lord KC, Alec Haydon KC, Sir Christopher Clarke, Charles Hollander KC and Salim Moollan KC.

Co-author: Eleanor Parsons - Burges Salmon

... “fraud vitiates everything” – but an under-baked case can do much the same.