Expert Witness Journal Issue 65 February 2026 - Flipbook - Page 34
Fraud or forbidden tactics:
between a rock and a hard place
by Gary Orritt, Legal Director
The Commercial Court was recently presented with
a unique question: What should the Court do when
someone with an apparently strong and substantial,
perhaps unanswerable, claim in fraud seeks
summary judgment in light of illicit knowledge
obtained by unethical means?
weaknesses of his client’s strategic position in the
proceedings, including relating to settlement.
These meetings, arranged by a third party
organisation with apparent links to the claimants,
were secretly 昀椀lmed and recorded. Those video and
audio recordings were provided to the claimants
who then deployed the information when applying
for summary judgment.
In other words, should a claimant be allowed to rely
on knowledge and evidence that came into their
hands via unethical channels? If not, what should
the Court’s response be bearing in mind that a
defendant with an objectively weak defence might
be absolved of the underlying fraud?
The underlying case relates to an allegedly
fraudulent scheme to expropriate shares. Mr Sklarov
(a defendant) was said to be the main 昀椀nancial
bene昀椀ciary of this scheme. In a previous hearing,
when continuing Worldwide Freezing Orders,
Calver J considered there to be a “strongly arguable”
case that the claimants’ deceit claim would succeed.
An application to commit Mr Sklarov for contempt
is pending. There are other pleaded claims in
contract, conspiracy, breach of trust or 昀椀duciary
duty, dishonest assistance and knowing receipt.
These were some of the tricky questions facing
Stephen Houseman KC, sitting as a Deputy Judge in
the High Court in Ricardo Benjamin Salinas Pliego &
Anor v Astor Asset Management 3 Limited & Ors [2025]
EWHC 2968 (Comm).
Mr Houseman KC decided that it would not be
appropriate and proportionate to strike out or stay
the underlying action in light of the claimants’
abusive conduct, at least at this stage. However, it
is likely that the claimants will pay the costs of the
hearing on the indemnity basis, as an appropriate
sanction.
The applications before Mr Houseman KC at the
most recent hearing were:
As a re昀氀ection of the importance of the issues at
hand, the judge has already granted permission to
appeal and cross-appeal. If the case continues, it
seems destined for the Supreme Court.
An application by the claimants seeking
summary judgment on the liability elements of
their pleaded claims in deceit and contract.
•
A cross-application by certain defendants to
strike out or stay the action for abuse of process
and / or a risk of an unfair trial.
The signi昀椀cance of the underlying claim
in fraud
Brief background facts
There is some signi昀椀cance to the underlying case
being one of fraud.
A solicitor acting for the defendant was deceived
into meeting a private investigator in the belief
that he was pitching for a new client represented by
them. Across nine hours of meetings, the solicitor,
referred to as ‘X’, was coerced by apparently skilful
intelligence techniques to divulge information
and o昀昀er insights into the perceived strengths and
EXPERT WITNESS JOURNAL
•
The civil litigation system is supposed to ensure
that a defendant who is responsible for “serious
wrongdoing, such as fraud” is held accountable. Fraud
is famously said to “unravel all”. A defendant should
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FEBRUARY 2026
