PCB Byrne LLP
1 Plough Place
EC4A 1DE, London, England
Nick Ractliff is an established fraud and banking dispute specialist, with peerless experience and expertise with freezing and disclosure orders, asset recovery and a range of civil fraud issues.
Nick specialises in complex, high-value and multi-jurisdictional litigation in a broad range of disputes involving civil fraud, asset recovery, the enforcement of awards and foreign judgments, banking, shareholder and director disputes and insolvency. He has extensive experience in managing and coordinating large teams of lawyers and other professionals across different jurisdictions and is particularly accomplished in seeking freezing, search and disclosure orders both domestically and simultaneously in other jurisdictions.
What would you say is the most challenging issue entering asset recovery in today’s climate?
The advances in technology and electronic communications together with the use of cryptocurrency enabling a more rapid movement of funds. These are increasing the challenges faced with the coordination of the timing and management of the various jurisdictional strands to an overall strategy to obtain effective relief and support necessary to lockdown and enforce against the debtor or fraudster’s assets.
How has the role of an asset recovery specialist changed since you started practising?
The role has not changed much other than to adapt to the changes and advances in technology and how funds/assets are transferred. The change is in people’s understanding of the importance of the role of the asset recovery specialist. There is no benefit to a client embarking on and incurring the considerable costs of litigation if there are no assets available for enforcement. There is therefore an increasing awareness of the necessity to involve the asset recovery specialist earlier to identify and lockdown assets to maintain the status quo pending judgment.
How is recovery of cryptocurrency different as compared to fiat money?
In some cases cryptocurrencies can be easier to trace than cash because there is a full publicly available transaction history. Expert investigators are able to use sophisticated software to map individual units of cryptocurrency from one digital wallet to the next. From an asset recovery perspective the key is therefore to identify the entry and exit points between cryptocurrency networks and “real world” assets. These gateways are largely controlled by exchanges so obtaining information/documents from them using the disclosure relief against third parties available from the court could prove vital in collaboration with specialist investigators in making successful recoveries.
What role do you see third-party funding playing in asset recovery litigation moving forward?
The third-party funding market has matured. This together with an increasing number of sources of funding becoming available and the appetite for risk means the involvement of funders is on the increase. This is likely to continue, which partly explains PCB Byrne’s tie up with Burford Capital. It enables us to provide a more streamlined process for clients with both legal and financial experts working together to find solutions where clients are facing financial challenges to bring and make recoveries in claims.
What challenges accompany the enforcement of foreign judgments, and how might the process be made more efficient?
The recognition and enforcement of judgments by way of reciprocal arrangements through a treaty or convention is more efficient than by way of a separate common law claim based on a judgment debt with summary determination. It means that post Brexit the recognition and enforcement of judgments from EU countries have become more challenging. There are some old bi-lateral treaties between the UK and some EU states that can be relied upon in the post-Brexit era. However, there is now an increasing reliance on the common law claim route of enforcement, which may be more open to attack on public policy considerations.
To what extent are civil remedies a more effective way of recovering assets than criminal remedies?
The civil courts have a wide and flexible range of remedies available to them, which together with a burden of proof based on a "balance of probabilities" rather than "beyond reasonable doubt" provides a more effective route of recovery for the victims of fraud. The increasing use and involvement of third party funding also makes the civil court more easily accessible compared to the criminal process, which is being increasingly burdened by a lack of funding.
How do you establish a detailed understanding of a client’s business to advise them effectively?
By good and consistent communication to develop and build a close relationship with the client, which is not solely focused on solving the problem but also understanding its objectives and how it fits with the client’s modus operandi. It is important to gain the client’s confidence so they feel comfortable in providing you with the instructions that are going to provide effective advice.
Looking back over your career, what is the most interesting fraud litigation case you have been a part of?
Given the nature of civil fraud and asset recovery cases and the complexities that are involved almost every case throws up an interesting challenge. The most challenging from a legal perspective and therefore most interesting was acting for an overseas bank against an individual who had guaranteed loans made by the bank to his business. Having obtained a freezing order and judgment against the individual we enforced the latter against him by breaking down a Liechtenstein foundation of which he was the beneficial owner. This allowed the court to appoint receivers to take control of those interests and use their powers to take steps to realise valuable properties in Italy for the purposes of enforcement.