The latest entry in our tip-sheet series deals with unlawful means conspiracy. This claim is useful where multiple parties have been involved in a scheme to corruptly defraud a state. We set out the circumstances when it may arrive and explain what you need to establish when bringing the claim. We also touch on how recoveries are calculated. Our tip-sheet is available here.
While the tip-sheet is designed for states, the claim can also be used by companies seeking to sue competitors who corruptly beat them in a tender by paying bribes. Our post on suing bribing competitors can be found here.
In our latest briefing, we consider the various civil claims and remedies available to states that are victims of bribery. The law of England, and the law of other common law jurisdictions, allow states to pursue claims not only against the bribe-payer and recipient, and but also against those who assisted in the bribery scheme. Those “assisters” are not confined to companies or other legal entities used to pay or receive bribes, or to launder their proceeds, but could extend to advisers such as lawyers and accountants, or to financial institutions. Depending on the type of claim deployed and the circumstances, a state can seek to recover the value of the bribe, the bribe itself or property acquired with it, or compensation for all of losses that have been suffered. There are also powers to rescind or terminate contracts with the wrongdoers.
The range of available claims and remedies inevitably creates complexity, and careful analysis of the facts is required to choose the right claim. Should a state terminate the contract and seek its losses for the other side’s breach or should it rescind the contract, putting each party back in the position they were in before the contract was agreed (less the bribe)? Where a bribe-taking public official has hidden his ill-gotten gains in inaccessible jurisdictions, are there any third parties who assisted his breach who would be susceptible for a claim? This note considers only the English position: there will be additional complexity, nuance and also opportunity if there are competing candidates for the applicable law.
Our briefing, “Civil claims for bribery”, appears here.
Companies are competing to win a contract. One pays a bribe to exclude its competitor from the bidding process, or to win the contract. If caught, it faces prosecution under the UK’s Bribery Act 2010, as do its bribing directors or employees. The bribing company also risks termination of its contract and claims from its customer.
But could it also be sued by its aggrieved competitor for compensation?
In England, and other common law countries, the answer is yes. And the available claims are not limited to wasted bidding expenditure. Lost profits can also be recovered.
The issue was tested in England in the recent case of Jalal Bezee Mejel Al-Gaood v Innospec Ltd. The defendant, Innospec, had previously admitted paying bribes in criminal proceedings in both the UK and the US. It had also settled a civil claim made against it by a manufacturer of competing chemicals in New York. The Claimant sued in England. It lost the case on the basis that it would not have won the contract in any event. But the case confirms that such a claim is viable. Our fuller briefing on the case appears here.