Edward Starling
- Partner
- Commercial Disputes
Pleading and proving fraud in commercial litigation – Key takeaways from London international disputes week 2025
Fraud disputes are high-stakes, fast-moving, and increasingly complex.
Fraud disputes are high-stakes, fast-moving, and increasingly complex. At a recent seminar hosted during London International Disputes Week (LIDW), Wedlake Bell Partner and Head of Disputes – Ed Starling, Karl Anderson and Andrew de Mestre KC (Deputy High Court Judge) from 4 Stone Buildings, Katharine Toney from Kroll and Kate Hart from Quantuma explored how best to navigate fraud litigation — from the moment suspicions arise through to enforcement of judgment.
Key points of discussion were:
The Importance of Understanding the Nature of Fraud and Getting the Pleadings Right
There is no single cause of action but many that are worth considering,— deceit, misrepresentation, bribery, breach of fiduciary duty, dishonest assistance, economic torts and conspiracy among them. This gives English law flexibility and the Courts have been reluctant to narrow causes of action to make it more difficult to pursue a fraud case.
Courts demand a high level of detail when fraud is alleged. Vague suspicions won’t suffice: get off the fence and plead it very specifically. Carefully consider the role of inferences in proving the fraud.
Recent judgments have reaffirmed that claimants must set out fraud allegations with particularity — not only identifying the who, what, when and how, but also the dishonest intent behind the conduct. Pleading fraud correctly isn’t just a legal formality — it can dictate the strategy, scope, and success of the entire case.
One key question to address at an early stage is whether you need to even plead fraud and rely on other causes of action that are easier to prove…
Interim Remedies: Freezing, Imaging & Strategic Leverage
One of the most powerful tools in a claimant’s arsenal is interim relief. With the most common options being:
- Freezing Orders & Proprietary Injunctions – How and when courts grant them, and recent clarification of the test relating to having a “good arguable case”. But consider if you really need a full freezing order.
- Imaging & Search Orders – Growing use of tech-based investigative orders to preserve and secure evidence. Imaging does not necessarily mean that you get access to the documents – it is a two stage process.
- Ancillary Disclosure (Norwich Pharmacal, Bankers Trust etc) – Tactically deploying and dovetailing with expert support (forensics, IT, accountancy) to build the paper trail from day one.
- Insolvency Act Powers – An alternative or complementary route to asset tracing and information gathering.
Tactical takeaway: Interim remedies must be carefully considered — they offer leverage, but come with costs and risks. Used well, they can shape the litigation from the outset.
Proving Fraud: Building the Case with Evidence and Inference
Fraud rarely comes with a confession — it must be inferred from facts, patterns, and documents.
- Forensic experts play a crucial role in uncovering and analysing anomalies. Consider what documents and facts you are asking the court to hang an inference of fraud upon.
- Practical signs of fraud in financial records or transactions must be examined.
- The growing role of litigation funding in fraud claims, and its impact on access to justice and strategic resourcing. This impacts the ability to pursue claims and enforce them internationally.
Clients benefit from early forensic input — from both financial and technical investigators — to identify red flags and preserve the evidence necessary to prove dishonesty.
Experts: When and How to Involve Them
Engaging the right experts — and doing so early — can be make or break in a fraud claim. It is important to consider:
- The role of forensic accountants and IT professionals at investigation stage – also helps with the enforcement stage.
- The need for clear instructions.
- Ensuring the expert has all the relevant documents and discuss this, as you may limit the benefit and prejudice of the process if there are inadvertent document gaps.
- Expert evidence on loss and quantum at trial. Obtaining the right classes of documents at the start is key and can set strategy depending on the level of quantum and the prospects of recovery.
The panel also considered the judicial expectations around expert independence, types of relevant expert (financial evidence is useful, evidence on standards expected, can be less useful) and clarity of the evidence (graphics and pictures being welcomed from the bench).
Getting the best out of experts means asking the right questions from the start — and using them not only to support the case, but to shape it.
Enforcement: Closing the Loop Post-Judgment
- Securing judgment is only part of the journey. Recovering assets requires follow-through:
- Linking interim remedies (e.g., freezing orders) to enforcement planning.
- Continuing use of investigators and funders to trace assets and uncover evasive structures.
- Cross-border considerations, and coordination with insolvency proceedings, if relevant.
- Consider committal proceedings for compliance.
Clients impacted by fraud need advisers who can move quickly, think tactically, and navigate complex legal and factual terrain. Our experience across a wide range of fraud disputes positions us to do exactly that.
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