Old Challenges to the New Gateway in light of Scenna v Persons Unknown
On 1 October 2022, very substantial revisions to the gateways for service out of the jurisdiction under Practice Direction 6B, paragraph 3.1 came into force in England and Wales. Prior to the introduction of the new gateways, victims of fraud faced significant hurdles in obtaining material information from third parties based outside of the jurisdiction. To some extent, those victims may still do.
Given that the vast majority of (if not all) frauds involve the expropriation of funds and/or assets to foreign jurisdictions, this position provided a “head start” for fraudsters and an unhelpful obstacle for those trying to pursue claims against them.
New Gateway 25
The most important of the new gateways for fraud practitioners is the introduction of a new gateway (25) dealing with service out of the jurisdiction of Norwich Pharmacal, Bankers Trust and other disclosure orders against (innocent) third parties.
The new jurisdictional gateway (25) permits service out of the jurisdiction in circumstances where “a claim or application is made for disclosure in order to obtain information”. The rationale for the new gateway was summarised in HHJ Pelling KC’s speech in July 20222 on the issue of crypto-currency fraud1. The new gateway was designed to assist those claimants who are adversely impacted by crypto-currency fraud. It was (and is) hoped that the new gateway will enable parties to identify defendants and enabling parties, in a shorter space of time than was previously the case.
Kit Smith (Managing Associate) is a member of Keidan Harrison’s Dispute Resolution team.