AB v The Family Officer Ltd and others  EWHC 650 (Comm)
In a fully reasoned decision handed down on 22 March 2021, Mrs Justice Cockerill DBE sitting in the Commercial Court in London awarded summary judgment for in excess of €3.5 million against London-based Italian businessman Matteo Cerri and six companies which he owns and operates.
The decision is striking in that summary judgment was given on the merits against each of the respondent Defendants, the court holding that there was no reasonable prospect of their establishing a defence at trial and that there was no other compelling reason for a trial to be held.
In reaching her decision, the Judge identified and relied on several strands of compelling, predominantly technical, evidence.
The facts in brief
The Claimant, an Italian national, held money through nominees in a bank account in Cayman. Fraudulent telephone calls were made to the Cayman bank and a fraudulent fax was sent to it, resulting in €15 million of the Claimant’s money being sent to a bank account held in England by the First Defendant, which is a company owned and operated by the Fourth Defendant, Mr Cerri. Much of the money was then rapidly paid away to other Defendant companies, third parties with whom Mr Cerri and his companies had a relationship, or for the benefit of Mr Cerri’s wife and on personal expenditure items, such as to Netflix.
On learning of the fraud, the Claimant made a series of urgent applications to the vacation judge sitting in the Commercial Court in London – initially using the ‘Persons Unknown’ jurisdiction – which resulted in Worldwide Freezing Injunctions, Proprietary Freezing Orders and disclosure orders being made against several of the Defendants; and further non-party disclosure orders being made against banks and financial institutions.
In what the Judge described as “… a striking illustration of the assistance which this Court is able to give a defrauded party…”, rapidly-obtained injunctions and information produced in response to the disclosure orders allowed the Claimant to quickly trace, freeze and recover from the Defendants and certain third-party recipients of the proceeds of the fraud approximately €11.5 million, leaving approximately €3.5 million (plus interest and costs) outstanding.
Key points of interest arising out of the judgment are:
The judgment demonstrates that it is possible to obtain summary judgment, even in a hotly contested fraud case.
There was a perhaps pleasing resort to the use of forensic technical analysis and the assistance lent by the highly-developed injunctive and disclosure regimes of the Commercial Court to secure judgment against the perpetrators and beneficiaries of a fraud which had been committed by the use of technology.
In AB v The Family Officer Ltd & others  EWHC 650 (Comm), the Claimant was represented at the summary judgment hearing and throughout the action by Paul Lowenstein QC of Twenty Essex, leading Philip Hinks of 3VB. They were instructed by Tony Lewis, Nathan Capone and a team at Fieldfisher. Sarah Tresman of Twenty Essex was also instructed at earlier stages.
Paul Lowenstein QC and Philip Hinks, with other counsel, also represented the Claimant in the leading ‘Persons Unknown’ freezing injunction and cyber fraud case of CMOC Sales & Marketing Ltd v Persons Unknown and 30 others  EWHC 2230 (Comm);  Lloyd’s Rep. F.C. 62