Key challenges in cross-border fraud litigation

Cross-border fraud claims are inherently complex and present a number of practical challenges. Jurisdictional disputes are often hard fought, with defendants seeking to contest service of claims out of the jurisdiction, or to argue that another forum is more appropriate. Establishing a gateway is therefore key. Success at this stage requires careful structuring of claims and clear evidence linking the dispute to England.

Disclosure

There can be an asymmetry of information at the outset of an investigation. The fraudsters will often have the evidence and the victims will be in the dark.  Evidence gathering can be difficult, particularly where relevant information is located in jurisdictions with limited transparency, evidence has been destroyed, or where key individuals are unwilling to cooperate.

While disclosure in England is robust, obtaining sufficient evidence to establish a claim at an early stage can be challenging. In comparison to other jurisdictions, however, the admissibility of evidence obtained through unconventional or even unlawful means can be relatively generous. In Bourlakova & Ors v Bourlakov & Ors [2024] EWHC 765, the court rejected attempts to exclude evidence simply because it had been unlawfully obtained, although such conduct may have costs or case management consequences. Similarly, in Pliego & Anor v Astor Asset Management 3 Ltd & Ors [2025] EWHC 2968 (Comm), the court considered the implications of covertly obtained evidence and the extent to which such conduct might amount to an abuse of process.

Against this, the increasing use of AI in investigations and e-disclosure has made it easier to process and filter large volumes of electronic data to identify key documents quickly. This can help ensure relevant supporting information can be put before the court to help support a case.

Funding

Funding is another important consideration. Large-scale fraud claims are often expensive to pursue, but they may attract third-party commercial litigation funding, particularly where there is a strong prospect of asset recovery. Funders typically cover upfront legal fees and disbursements for both the costs of the claim and, potentially, its enforcement, in return for a share of the financial recovery.

If the case is won or settled, the funder gets their investment back plus a multiple of the investment; if lost, the funder loses their money and the claimant owes nothing. Funding is normally used in tandem with after the event (ATE) insurance, which protects against adverse costs orders if the claim is unsuccessful. This combination enables claimants to pursue claims while minimising the adverse costs risk.

Reluctant witnesses

It can be difficult to get witnesses to commit to give evidence before a court of law about the  wrongdoing of others.  This may be due to a reluctance to get involved, be implicated, the time commitment, or the risk of retribution.

It is the policy of the English court service to support remote participation by video link across courts and tribunals where it is in the interests of justice and impractical to attend in person. The courts will also grant witness summonses requiring a witness to attend to give evidence or to produce relevant documents. These measures can assist witness participation in cross border fraud matters (by reducing the time and cost of bringing witnesses to a physical hearing), reduce physical risks to key witnesses appearing in person in a fraud trial, and ensure all relevant evidence is before the court.

Asset recovery

Establishing jurisdiction and obtaining judgment in a cross border fraud case may be only half the battle. Fraudsters may have structured assets in offshore structures in the names of nominees, or converted them into hard to trace property. The English courts provide a variety of options to support enforcement, including the availability of insolvency measures to set aside transactions at an undervalue, preferences or transactions defrauding creditors.

It may be necessary to undertake tracing and following exercises to follow the money, to register and enforce a judgment against assets in other jurisdictions, or to obtain orders to enforce against digital assets.

The courts have also developed authority (known as the Chabra jurisdiction), allowing relief to be granted against third party nominees holding assets on behalf of wrongdoers. This can be particularly useful in overcoming the absence of a direct cause of action against the third party, while gaining access to the assets.

Enforcement against offshore structures remains a significant challenge. Fraudsters frequently use trusts and corporate vehicles in offshore jurisdictions to shield assets. The English courts have long shown a willingness to look behind such structures. In JSC Mezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch), the court found that assets held in trusts could in substance be treated as belonging to the defendant.

The future of fraud litigation?

The English courts remain at the forefront of cross-border fraud litigation. Their flexible approach to jurisdiction, combined with powerful interim remedies and extensive disclosure, makes them an effective forum for pursuing complex international claims. However, success depends on careful navigation of jurisdictional gateways, strategic use of procedural tools, and a clear understanding of the practical challenges inherent in multi-jurisdictional disputes.