Since the Bribery Bill became the Bribery Act almost everyone in the legal services industry has claimed an expertise. Professional consultancies have sprung up alongside established Solicitors’ Firms and Barristers’ Chambers offering compliance audits for multi-national companies worried about the impact of the new Act.
We can lay claim to having actual bribery and corruption litigation experience. Chambers has advised and represented both the SFO and Defendant companies in the key bribery cases that have been before the Courts. More than that, we have acted in the ground-breaking civil recovery cases, adopted as an alternative to criminal prosecution.
Confiscation in Bribery Cases
A significant amount of our bribery practice concentrates on ‘financial exposure’. In particular, whether Defendant companies could face confiscation orders after conviction. The mere idea that the State is entitled to argue that any benefit derived from bribery ought to encompass profits, investments growth and financial solvency is, plainly, a terrifying prospect.
We are all too familiar with applications claiming millions of pounds against convicted persons and periods of custody in default if such orders are not met. How that applies to Corporate Defendants has not been tested yet but one thing is clear: Prosecutors will not shy away from using their draconian confiscation powers against Companies whom they consider to have benefited from corruption, possibly going back through a Corporation’s trading history and applying the ‘assumptions’ that all property received or transferred is the proceeds of crime.
All too often, confiscation is the real threat to a Company’s on-going existence. It is also the core area of our expertise.
Civil Claims for Bribery
Recently, we have seen an increase in requests for advice on the civil law of bribery, another area of our expertise. The new Act appears to have prompted a number of victim Corporations to think about civil solutions.
For example, clients have asked us what they can do in situations where:
- A bidder has lost out on a European-wide tender because another company has bribed to secure the contract – can the briber and the recipient be sued? For what loss?
- An employee has misused his position to ask for a bribe from a customer causing the employer consequential loss – can the bribe be recovered? What action can be taken against the conspiring customer?
- An EU company has been the victim of a conspiracy to bribe overseas by a UK national; - does the claim have jurisdiction in the UK? What are the firm’s reporting obligations to the SFO?
- A UK company has refused to pay a bribe to a foreign public official who has then acted to frustrate that Company’s oversees operation – what action can the UK Company take? Can it start proceedings in this jurisdiction?
- A foreign government wishes to claim against a UK national for helping one of its corrupt ministers launder money through UAE banks. Can the UK High Court accept jurisdiction? Would it be better to ask the SFO to start a criminal investigation? Can the criminal court confiscate on the foreign government’s behalf?
It is important to remember that the legal definition of a bribe in civil law is wide; circumstances may preclude the need to show that any payment has been made ‘corruptly.’ What is more, there is no need to prove that the person bribed was influenced by the bribe.
Companies should take advantage of the civil remedies that are available. There is no doubt about the fact that the public spot-light is well and truly fixed on the prevention of bribery and corruption; the law is developing and is better equipped to act in order to prevent loss and recover damages.
Contact us about ‘the full picture’ of bribery and corruption litigation.