Paul Lowenstein QC (of 20 Essex Street), instructed by Cooke, Young & Keidan LLP, led a team of juniors including Harris Bor and Matthew McGhee (of 20 Essex Street) and Philip Hinks in a series of public hearings in London in November and December 2017, when the Commercial Court confirmed a suite of earlier interim orders to assist a global commodities company to trace and secure money that had been stolen from its bank accounts following a sophisticated payments fraud by unknown `ghost' perpetrators.
The fraud investigation and claim are ongoing, but the facts at present appear to be that in a cyber-attack, unknown perpetrators caused several million dollars of the Claimant's funds to be transferred from its bank accounts in London to and through multiple bank accounts at many banks in a large number of jurisdictions. There are three innovative features of the orders granted by the Commercial Court:
1. WFO against `Persons Unknown'
In what is believed to be the first case of its kind, the worldwide freezing order (WFO) was initially granted against a specified class of `Person(s) Unknown' on the basis that the class could be defined with sufficient precision and that it was known where the perpetrators had channelled the money. There is no report of the Court having previously fused its jurisdiction to make injunctions against persons unknown with the jurisdiction to make freezing orders. Following the initial grant of the WFO and early investigations, some named individuals have been added as alleged fraudsters, but the general order against Person(s) Unknown remains. Permission has been obtained to enforce the WFO including against the Persons Unknown defendants in all jurisdictions worldwide.
2. Internationally enforceable disclosure orders against banks
Ancillary to the WFO against the fraudsters, the Commercial Court has confirmed a disclosure order against 35 international banks to or through which the proceeds of the fraud have been diverted. This order is to assist with the tracing and securing of the misappropriated money and with the identification of the ghost fraudsters.
Specific measures are built into the order to allow it to be enforced in the banks local jurisdictions while ensuring that foreign banking secrecy and client confidentiality laws are not disturbed. Permission has also been obtained to enforce the disclosure order against banks in all jurisdictions worldwide.
3. Alternative service provisions
Finally, the Court has made groundbreaking orders for service of documents by alternative methods including (1) against two of the alleged fraudsters for whom it was difficult to find reliable contact details, by Facebook and (2) on the alleged fraudsters and on the banks by a combination of email notification and online data room document delivery. The online data room has been compartmentalised for confidentiality and allows the claimant to properly notify international banks of new accounts and persons involved in the fraud as the investigation continues and the number of court orders expands, but without having to affect repeated service through conventional means (e.g. couriering large volumes of files around the world) which would otherwise involve exorbitant expense and delay the asset-tracing and recovery exercise.