Civil remedies trump POCA recovery in landmark decision

0370 270 6000

Search Mobile

collapse

already registered?

Please sign in with your existing account details.

Email address

Password

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

Forgotten your password?

collapseSign

Home

Insights & events

Resources

Blogs

Civil remedies trump POCA recovery in landmark decision

21 December 2021

Where clients rely on the criminal justice system to prosecute fraud and repatriate funds lost due to dishonest breach of fiduciary duties of a senior officer, the decision in Crown Prosecution Service v Aquila Advisory Limited [2021] UKSC 49, provides welcome clarification on the interplay between POCA and common law recovery.

The decision underlines a company’s capacity to enforce its proprietary rights in priority to unsecured creditors, though a constructive trust and represents a significant weapon where directors are in receipt of unauthorised profits in breach of their fiduciary duties. The ability to do so would not be undermined by the illegality of directors’ acts, which would not be attributed to the company and where companies may, as in this case, decide to pursue their own recovery

However, as a caveat, it seems companies may still be subject to the POCA regime and stripped of a potential windfall under Parts 2 and 5 of POCA, which the CPS did not avail themselves of in this case.

Related opinions

Lying on your CV – what can possibly go wrong?

The majority of people do not feel the need to embellish their CV to get that coveted position and move on up the career ladder. Their worthiness and benefit to the hiring organisation are easily demonstrated through the recruitment process – application, psychometric testing, selection day or interview.

View blog

Payment Fraud landscape shaped by technology in 2021

Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.

View blog

Chancellor announces levy on companies subject to anti-money laundering regulations

The Chancellor’s latest Budget Report outlined that the Government will introduce a £100 million Economic Crime Levy, otherwise known as the AML Levy no earlier than April 2022 to fund action to tackle money laundering and ensure delivery of reforms in the Government’s Economic Crime Plan.

View blog

Money laundering – a new focus?

It is important to recognise that organisations and individuals do not have to intend to launder money or even to act dishonestly in order to commit money laundering offences.

View blog

View all blogs