Understanding the justice system and the remedies available to you can be confusing.
Some of the most common terms used are explained below.
• Burden of proof:
The degree to which the Crown (see criminal litigation) or a claimant (see civil litigation) must establish their case before the court.
• Civil burden of proof:
Civil litigation requires the claimant (see civil litigation) to prove his case “on the balance of probabilities”.
• Civil litigation:
The process of one party (the “claimant”) bringing a court case (or action) against another party (the “defendant”) in a civil court, e.g. the High Court. Civil litigation requires the claimant to prove his case to satisfy the civil burden of proof.
• Civil recovery:
The process by which a claimant (see civil litigation) may bring an action against a defendant to recover any losses the claimant may have suffered as result of the defendant’s fraud, breach of contract, negligence or other culpability.
• Class action:
A class action is where a group of claimants (see civil litigation) who may individually have suffered small losses arising from an alleged culpable act, but who collectively have suffered a large loss, present their case as a single group of litigants. In presenting their case as a group of litigants this may facilitate a cost-effective solution in funding the litigation.
An optional action brought by the Crown against a defendant in criminal litigation who has been found guilty of or pleaded guilty to a crime of an acquisitive nature. The Crown, in a criminal court, must prove “on the balance of probabilities” (see burden of proof) that the defendant has benefited from his crime and has assets available for confiscation. Confiscation is separate from any punitive fines the court may impose on a defendant as a criminal penalty.
• Criminal burden of proof:
Criminal litigation usually requires the Crown to establish the burden of proof “beyond all reasonable doubt” (but see confiscation).
• Criminal litigation:
The process by which the Crown – via a law enforcement authority – prosecutes a defendant for an offence contravening criminal law in a criminal court, e.g. a Crown Court. It is possible to bring a private prosecution against a defendant, but this is very rare. Criminal litigation usually requires the Crown to prove its case to satisfy the criminal burden of proof (but see confiscation).
• Disclosure order:
A court order requiring the person or organisation to whom it is addressed to produce to the claimant the information and explanation specified in the order (see civil litigation). A variation on a disclosure order is a production order.
• Freezing order:
A court order restraining a defendant from dissipating any assets which may or may not have been funded through the defendant’s culpable act.
A freezing order allows time for the claimant (see civil litigation) to prepare his case against the defendant, during which time the claimant may investigate the full extent of the loss suffered and the extent of the defendant’s ability to pay any recovery order which may be granted. A “worldwide” freezing order may be recognised in other jurisdictions around the world, preventing a defendant from dealing with his assets wherever they may be.
• Search order:
A court order requiring the person or organisation to whom it is addressed to permit the claimant’s (see civil litigation) representative to enter the person’s or organisation’s business and/or domestic premises to look for and preserve (and copy) relevant evidence and property.
• Receiving order:
Where the defendant’s assets include businesses or complex investment structures, it may be necessary to have the court appoint a receiver to investigate the extent of the defendant’s assets. Receivers can perform this combined investigative and management role by effectively being granted control over the defendant’s assets. Should a recovery order be granted by the court, an enforcement receiver may be required to liquidate the defendant’s assets and satisfy the amount of the recovery order from the realised funds.
• Recovery order:
A court order issued in favour of the claimant (see civil litigation) ordering the defendant to pay to the claimant an amount equal to the value of the claim (as confirmed by the court) or to transfer assets. The claimant will be responsible for seeking to enforce the recovery order against a defendant’s assets, including any assets subject to a freezing order.