Hemispheres and gateways: cross-border fraud and the English courts

Gateways and benefits

Cross-border fraud continues to expand in scale and sophistication, frequently involving complex corporate structures, multiple jurisdictions and rapidly movable assets, including digital assets. For claimants seeking effective remedies, a critical strategic decision is where to pursue proceedings. The English courts have developed a reputation as a leading forum for fraud litigation, particularly where assets, evidence or defendants are dispersed globally.

This article takes a closer look at the principal jurisdictional gateways through which overseas fraud claims can be brought before the English courts, how those gateways operate in practice, and highlights the strategic advantages and challenges associated with litigating in England.

Jurisdictional gateways: bringing foreign fraud within the English courts

Where a fraud has taken place outside England and Wales, claimants must establish that the English court has jurisdiction over the dispute. This is typically achieved through the rules on service out of the jurisdiction under CPR 6.33 and CPR 6.36, together with Practice Direction 6B.

In some cases, permission to serve out is not required. This includes situations where the parties have agreed an exclusive English jurisdiction clause falling within the Hague Choice of Court Convention, or where the claim is brought under a contract conferring jurisdiction on the English courts.

In most fraud cases, however, claimants rely on one or more of the jurisdictional gateways in PD6B. Several gateways are particularly significant in fraud litigation:

1. the tort gateway allows claims to be brought where damage is sustained within the jurisdiction, results from acts committed within the jurisdiction, or is governed by English law. This gateway has been interpreted broadly by the courts. In FS Cairo (Nile Plaza) LLC v Brownlie [2021] UKSC 45, the Supreme Court confirmed that damage can be localised in England where the claimant suffers loss here, even if the underlying wrongful act occurred abroad;
2. the necessary or proper party gateway permits a foreign defendant to be joined to proceedings against an anchor defendant within the jurisdiction, provided there is a real issue to be tried. This gateway is frequently used in fraud cases to bring in offshore entities or individuals alleged to be involved in asset dissipation;
3. contract gateways may apply where a contract was made in England, governed by English law, or breached within the jurisdiction, including cases involving dishonest assistance in breach of contract;
4. there are gateways for injunctions, which allow the court to assume jurisdiction where relief is sought to restrain acts within the jurisdiction or to compel action here. In practice, this gateway is often engaged where claimants seek freezing orders against assets located in England;
5. specific gateways also apply to claims involving trusts, which are commonly used in the context of offshore asset-holding structures.

Even where a claimant can establish that a gateway applies, the court retains discretion. It must be satisfied that there is a serious issue to be tried and that England is clearly the most appropriate forum. This question of forum conveniens can determine whether or not the claim can be brought before the English courts.

The importance of forum: lessons from case law

The English courts have shown both flexibility and restraint in applying the jurisdictional gateways. While they are willing to accept jurisdiction in appropriate cases, they will decline to do so where England is not the natural forum for the dispute.

For example, the court accepted that certain jurisdictional gateways were satisfied in a fraud claim with connections to England and granted freezing orders. However, it ultimately stayed the proceedings on the basis that Abu Dhabi was clearly more appropriate.

Similarly, in Mussa v Issa [2024] EWHC 763 (Ch), 4 April 2024, the court held that Malawi, not England, was the proper forum for a dispute concerning an alleged fraudulent banking arrangement. Although the claimant argued that loss was suffered in England, the court concluded that the dispute had its closest connection to Malawi, where the relevant transactions and arrangements had taken place.

By contrast, the English courts have taken an expansive approach in cases involving novel forms of property. In recent cryptoasset cases, the courts have been willing to find that damage is sustained in England where cryptoassets are owned or controlled by English domiciliaries, thereby bringing such claims within the tort gateway.

Why litigate fraud claims in England?

Despite the jurisdictional hurdles, England remains a highly attractive forum for fraud litigation. Several factors underpin this position – here are some practical examples:

1. the English courts and their judiciary are widely regarded as independent, predictable and experienced in handling complex international disputes. The procedural framework supports efficient case management and relatively swift progression to trial;
2. the availability of powerful interim relief is a defining feature of English fraud litigation. Worldwide freezing orders, proprietary injunctions and asset disclosure orders are routinely deployed to prevent the dissipation of assets and to preserve the status quo pending trial. These remedies are often backed by penal notices (meaning that breach can result in criminal sanctions), enhancing their effectiveness;
3. the courts have also demonstrated flexibility in adapting these remedies to modern contexts. In CMOC Sales & Marketing Ltd v Person Unknown & Ors [2018] EWHC 2230 (Comm), the court granted injunctive relief against unknown defendants in a cyber fraud case and permitted alternative service via innovative means, reflecting a pragmatic approach to emerging fraud risks;
4. English disclosure rules are perceived as comparatively advantageous to fraud claimants. The ability to obtain extensive disclosure of documents, including electronic communications such as emails and messaging app data, can be critical in uncovering the full extent of a fraud. The courts have shown little sympathy for attempts to resist disclosure by reference to foreign law restrictions;
5. the English courts adopt a pragmatic approach to foreign law. Expert evidence is used to establish the content of foreign law, but the courts retain control over its application. In practice, this can create opportunities for claimants to advance claims that might face greater obstacles in the foreign jurisdiction itself;
6. finally, even if the primary proceedings do not take place here, the English courts are willing to grant relief in support of foreign proceedings. Under section 25 of the Civil Jurisdiction and Judgments Act 1982, the English courts can grant interim remedies where substantive proceedings are taking place elsewhere. In Hughes v Bellamy & Ors [2026] EWHC 237 (Ch), the court granted interim injunctive relief to support unfair prejudice proceedings in the Isle of Man, illustrating the pragmatic approach taken to preserving assets.