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Speech by Mr Martin POLAINE, Director of Amicus Legal Consultants Ltd,United Kingdom

UK Mechanisms and Strategy for Fighting Corruption

Background

Mechanisms and strategies to fight corruption typically contain a number of heads, or pillars; for instance, preventive, enforcement and prosecution, international mechanisms, to name but a few. However, this paper will focus on the law enforcement and prosecutorial.

Bribery offences in England and Wales are criminalised by what has been described as a “patchwork quilt” of common law and statute. As many of you will be aware attempts to reform the law back in 2003 came to nothing, but, finally, a new bill is expected to be laid before Parliament later this year, or early next. Perhaps, at last, a rationalisation of the criminalisation framework is on its way.

Unsurprisingly, then, law enforcement and prosecution responsibilities are not neatly in the hands of one body, but are diffused. The UK does not have an all embracing national police force. Accordingly, the 43 local police forces in England and Wales, plus their Scottish counterparts, each have a role to play in the investigation of allegations of corruption. In addition, the Serious Fraud Office (SFO) has it own investigative powers. As for prosecutors, a corruption case could fall within the remit of the CPS1, the SFO (which has both an investigative and prosecuting role), or, exceptionally, the RCPO.

Investigations

The Resources Two of the UK’s police forces, the Metropolitan Police Service (MPS) and the City of London Police

(CLP), have real specialisation in corruption investigations: The MPS has a team of about 25 officers within its Economic and Specialist Crimes Department (otherwise known as the Public Sector Corruption Team) based at Scotland Yard. That team investigates public sector fraud and corruption offences and can also be expected, in the future, to play a part in some of the foreign bribery investigations arising from nationality jurisdiction having been taken in relation to corruption offences. However, the MPS, despite its size, is still a local force, and is limited, generally, to investigating corruption and fraud within its own police area. Certainly it still retains a national and indeed international role, but has to answer to the Metropolitan Police Authority for its use of resources and will, accordingly, be expected to deploy those for the benefit of Londoners.

1 In Scotland, unlike the position with CPS, the Procurator Fiscal Service, headed and superintended by the Lord Advocate, is responsible both for the investigation and prosecution of crime, including corruption. Thus, the police are obliged to conduct investigations subject to the direction of the relevant Procurator Fiscal. Scotland is divided into 11 areas with a total of 48 Procurator Fiscal offices spread across them. As part of the same department as the Procurator Fiscal, the Scottish Crown Office is responsible for criminal policy matters. That, too, is headed by the Lord Advocate. In more serious cases, including allegations of bribery or corruption, the police must report the making of an allegation to the Procurator Fiscal, who will then become responsible for managing and supervising the case. In addition, the Crown Office has situated within it the International and Financial Crime Unit, the powers and remit of which are similar to those of the SFO (and which will be responsible, in Scotland, for handling foreign bribery cases).

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The MPS also has a Directorate of Professional Standards responsible for, inter alia, the investigation of police corruption. It has both a reactive and proactive capability, lends its expertise to other forces and other law enforcement agencies, and has provided methodologies and ‘best practice’ to a range of other jurisdictions.

Meanwhile the CLP has also built up a specialisation in economic crime and fraud (a necessity given that the City is, of course, home to much of the UK’s financial sector) and also plays a key role in assisting the SFO with many of its investigations. That latter role being particularly important, as the SFO has only limited covert and proactive powers available to it.

The Department for International Development (DFID) has funded a joint group composed of units from the CLP and the MPS with specific remits for, respectively, foreign bribery investigations and the investigation of the laundering of corrupt assets by politically exposed persons (PEPS). It is perhaps too early to evaluate their efforts, but the CLP unit has taken forward four foreign bribery investigations with the SFO and made its first arrests in January 2007.

The UK has recognised the pivotal role to be played in anti-corruption by the FIU. It is housed within SOCA, in a dedicated operational division called the Proceeds of Crime Department. The FIU is also a full member of the Egmont Group of Financial Intelligence Units of the World, an informal grouping of specialist agencies in over 100 countries that receive, analyse and disseminate disclosures of financial information made in accordance with AML/CFT arrangements. Internationally, it has strong and established links with FIUs in all regions. Given that SOCA is itself a ‘gateway’ for other states, as well as Interpol and Europol, there is real potential in developing its role further to ensure it plays a part in encouraging ever more proactive information-sharing by states to counter money laundering and to facilitate asset recovery.

Furthermore, SOCA has been designated as the new Asset Recovery Office (ARO), with it being formally located within the International and PEP Team of the FIU. The creation of AROs follows the EU Framework decision, which decreed that each member state would, by the 18th December 2008, implement a national Asset Recovery Office2. The creation of AROs across Europe is an interesting development, with their remit being to facilitate the tracing and identification of proceeds of crime or other crime related property which may become the object of a freezing, seizure or confiscation order made by a competent judicial authority.

To date, however, whilst only a small number of AROs have been formally announced by the EU Member States, and decisions are awaited as to the structure, location and governance arrangements of the remaining offices, most EU states have, in effect, some form of ARO in place.

The UK’s FIU appears to have a growing awareness of corruption issues, and SARs reports involving overseas corruption are now sent directly through to the CLP unit (the OACU) from SOCA.

Investigative Strategies

Reactive Investigations Traditionally anti-corruption investigations tended to be reactive, as opposed to the increasingly

important proactive investigations discussed in detail in the next section.

2 The UK has two such offices; one within the SCDEA which has responsibility for Scotland, and one within SOCA with responsibility for England, Wales and Northern Ireland.

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Reactive investigations, particularly in relation to commercial corruption and corruption in relation to the obtaining of contracts, will often rely on forensic accountancy, asset tracing and financial investigation. However, one of the most compelling pieces of testimony in a corruption case, but equally one of the most dangerous to all sides, is that from the individual who was within the corrupt company or was part of the corrupt criminal network. In the case of the former, we are faced with the so-called ‘whistleblower’ and, in many jurisdictions, a specific legislative framework concerning whistleblowers. As for the evidence of the whistleblower, the risk is obvious: is he or she a credible witness or has his/her evidence been distorted or even fabricated through frustration, resentment or in the hope of some other reward? Equally, is he or she simply providing evidence because of some form of inducement? The risks around the evidence of the criminal participant, are, however, even more stark. The same concerns arise, principally those of inducement and credibility, but this time set against a background of quite possible risk to life, manipulation of the process and, very often, a history of past and present criminality and related ‘baggage’.

In a corruption or misconduct in a public office case such a criminal associate or accomplice, perhaps faced with overwhelming evidence, may turn ‘State’s Evidence’ or ‘Queen’s Evidence’ and elect to give evidence against others. No particular difficulties of procedure arise here. It will usually be that a draft witness statement is provided by an accused who has decided to cooperate; as a matter of practice, such a witness statement will not be signed until after a plea of guilty has been entered. Sentence, meanwhile, will usually, but not invariably, be passed after he has given evidence at the trial or trials of his associates.3

Forensic accountancy input has played a significant role in UK reactive investigations, and should not be overlooked in any future investigative strategies. The following ‘learning’ has emerged:

(i) The forensic accountant is able to:

• Tracetransactionsbacktothemoney/asset

• Explaintransactionstothecourt

• Analyseinternationalmoneyflows

• Conductafullanalyticalreview

• Aidthecourt’sunderstandingoftheindustry/business

• Identifyunexplainedturnover&consultancyfees

• Linkrelatedparties?

• Focusonlikelyareasofmisstatement

3 The approach of judges until the end of the 1970s was that a co-accused should be sentenced before giving evidence. Lord Goddard CJ, giving judgment in Payne [1950] 1 AER 102, stated that co-accused should generally be sentenced together but “what I have said does not apply to the exceptional case where a man who pleads guilty is going to be called as a witness, in those circumstances it is right that he be sentenced there and then so that there can be no suspicion that his evidence is coloured by the fact that he hopes to get a lighter sentence.” However, Boreham J giving the judgment on the Court of Appeal in Weekes [1980] 73 CR APP R 161 stated that an accused who give evidence against his former co-accused should not be sentenced until after the co-accused’s trial. He stated that “Here are made manifest difficulties that arise when persons involved with others are sentenced before the full facts have been heard, particularly where a trial is to take place, as it was to take place here…There may be exceptions, but generally it is clearly rights, it is clearly fairer and it is better for both the public and all the defendants concerned, that all are sentenced at the same time and at the same court whenever that is possible.” That the position remains as it was stated in Weekes was confirmed by the Court of Appeal in Chan Wai-Keung [1995] 1 WLR 251.

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• Explainaccountingstandards

• Providerecognitionofincome

• Reviewbalancesheet,profit&lossaccount

• Sampling–statisticalvlikelyfrauds

(ii) His/her involvement will also assist re:

• Recordingthetransactions

• Useofalltheinformationavailable

• Tracinginbothdirections

• UseofITresources

• Useofinsolvency,civil,criminalroutes

•Understandingdifferentjurisdictions

Proactive Investigations The nature of corrupt transactions, particularly those involving corrupt police or law enforcement

officials, is such that traditionally reactive measures of investigation are fraught with difficulties. The offer or solicitation of a bribe or other advantage will often be face to face between two parties, with no independent witnesses. Where there is a willing witness, for instance a party who has been solicited by an official, he or she may be unreliable or tainted. There will be circumstances, as discussed above, where a reactive investigation, perhaps with the benefit of whistleblower or protected witness evidence, is the only or most appropriate route. However, since the late 1990s many jurisdictions have recognised the value of an intelligence led, proactive approach. Indeed, very often a proactive investigation, utilising covert methodologies, will be the only way of progressing enquiries. Such an approach is, of course, entirely consistent with the growth of intelligence-led policing.

Covert deployment may form the basis of intelligence gathering, evidence obtaining, or both, in the course of a corruption investigation. The proactive operation might involve information from a source, intelligence and/or evidence from the deployment of an undercover agent or participating source, surveillance or telecommunications product. The investigation might comprise of what is best described as a ‘sting’ operation or, more specifically, the increasingly useful intelligence-led integrity test (discussed in more detail below).

In the UK in 2001 the House of Lords extensively reviewed the current state of law on entrapment, and the limits of acceptable police conduct when they delivered a judgement on 25 October 2001 on two related appeals (Attorney General’s Reference Number 3 of 2000, R v Looseley). Both cases involved the supply of drugs to undercover police operatives following circumstances where the operatives had been proactive in the course of their dealings with the defendants.

This appeal addressed two issues:-

1. The extent to which the powers to stay proceedings or exclude evidence under S. 78 of PACE have been modified by Article 6 of the European Convention on Human Rights, and

2. What conduct by agents of the state would constitute entrapment of such a nature that either a prosecution based on that evidence should be stayed as an abuse of process, or the evidence should be excluded under S. 78 of PACE.

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The following principles were confirmed:

(a) Entrapment is no defence in UK law;

(b) The court has a jurisdiction to stay proceedings and a discretion to exclude evidence;

(c) A stay of proceedings will usually be the most appropriate remedy in response to entrapment. The court took the view that if there had been “an affront to the public conscience” then it would be unfair to try the defendant;

(d) The court (rather like the court in Smurthwaite and Gill) set down a number of factors to be taken into account, namely:-

• Have thepolicecaused thecommissionof theoffence,orsimplygiven thedefendant theopportunity to commit it?

• Istheoffenceonewhichwouldbedifficulttodetectbyovertmeans?

• Thepolicemustactingoodfaith,i.e.theymustshowthattheyhadreasonablegroundsforsuspicion.

(e) The reasonable grounds for suspicion need not relate to a specific individual;

(f) It is not essential that the agent of the state acts in an entirely passive manner;

(g) The greater the inducements or overtures made the more likely the court would conclude that the unacceptable boundary had been crossed;

(h) Regard should be had to the defendant’s circumstances;

(i) The court is more concerned with the conduct of the police, not the background of the defendant.

Integrity Testing Integrity testing is capable of being an important tool in the detection and eradication of public sector

corruption. However, it carries with it a number of legal issues which a prosecutor will need to consider and address. In particular, it is vital for a prosecutor to be satisfied that a planned test has a legal basis, both in domestic law and in relation to human rights instruments/jurisprudence, and, hence, legitimacy before it takes place.

Integrity testing may be divided into two types: The first is sometimes called “random virtue” testing and is used by institutions to highlight the presence of issues or abuses which may not amount to criminal offences, but which are of ‘corporate’ concern. The second type is “intelligence-led” tests which arise when, as the name suggests, there is information or intelligence that a particular individual or group of individuals is committing criminal or serious disciplinary offences.

Either type of test, if carried out, would involve a potential breach of the right to a private life. It is, therefore, important to ensure that, in relation to any test, there is a legal basis for it, it is necessary in the particular circumstances and it is proportionate to the risk or abuse being investigated.

Experience by those in a number of jurisdictions suggests that early legal advice is a necessary component of any properly planned integrity test. Indeed, in the UK law enforcement has developed a best practice whereby a written report is submitted to a prosecutor outlining: intelligence upon which the need for an integrity test is based, the suggested scenario or scenarios and the various authorisations which will need to be sought.

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The UK has had particular recourse to integrity testing in relation to corrupt law enforcement officers and officials. Intelligence-led tests have tended to involve allegations that sensitive information is being passed to criminal associates, that drugs or cash (or indeed both) are being stolen from searched premises, that drugs are being hived off and sold through criminal associates, or that an officer or official is party to a corrupt relationship with a known criminal and is assisting that criminal to avoid detection, either by imparting intelligence to him or by seeking to compromise ongoing operations.

Key considerations for a successful test are as follows:

• Thereisalegalbasis(bothdomesticallyandinhumanrightslaw)forit.

• Thereisreliableintelligenceorinformation.

• Thetestseekstoreplicateascloselyasitcanthenatureoftheintelligence.

• Allstagesofthetest,includingpreparation,arerecordedbythebestavailablemeans(e.g.audio,video, etc).

• Alldecisionsmadeastothenatureofthetestandits implementationisrecordedinapolicyordecision log.

• Thereisacompleteaudittrail.

• Thechosenscenarioisfeasibleandcredible.

• Thetestonlyrunsforaslongasisnecessary.

• Thescenariodoesnotamounttoentrapment.

• Theinvolvementofthirdpartiesandtheriskofcollateralintrusionarekepttoaminimum.

• Presentation in court anddisclosure implications are addressedat each stageof planningandimplementation.

• Eachactioncarriedoutbytheinvestigativeteamiscapableofjustificationonestablisheddomesticand human rights principles.

Prosecution

The CPS is an independent prosecuting authority, responsible for prosecuting criminal cases investigated by the police in England & Wales. At CPS Headquarters, the Special Crime Division (SCD) is responsible for prosecuting serious domestic corruption cases. CPS Areas prosecute lower level corruption cases.

The Central Confiscation Unit (CCU), which sits within the Organised Crime Division (OCD), deals with the confiscation aspects of corruption (and other) cases.

Given the fact that corruption often goes hand in hand with fraudulent activity, CPS expertise on fraud is be relevant to anti-corruption work. The Fraud Prosecution Service (FPS) within CPS Headquarters prosecutes complex, sensitive or high profile fraud cases, or those involving large sums of money.

The Serious Fraud Office (SFO) acts as the focal point for receiving any allegations of corruption offences by UK nationals or incorporated bodies overseas and has undertaken responsibility for the initial review of all allegations received in this area.

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The Substantive Criminalisation Framework

Bribery is a common law offence. It is limited to the bribing of, or the acceptance of a bribe by, a public office holder or official. In addition, there are two main criminalisation statutes: the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906. There are also some amendments to those by legislation, in 1916 and 2001 respectively. We shall look at those in due course. In addition, bribery, and indeed wider corrupt practices, are also found in at least 11 other statutes, ranging from the Sale of Offices Act 1809, through the Licensing Act 1964 to the Representation of the People Act 1983. For present purposes, you may be relieved to know that I will be putting those firmly to one side!

Just as the common law offence of bribery is limited to the public sector, so the Public Bodies Corrupt Practices Act 1889, introduced by Randolph Churchill MP, is also limited to public sector bribery; in particular, to the officers and employees of public bodies. The 1906 Prevention of Corruption Act, meanwhile, focuses on corruption by agents and covers both the public and private sectors. The 1916 Act of the same name did not create any new offences, but did extend the meaning of “public bodies” and introduced a presumption of corruption when money has been received by employees of public bodies in connection with public contracts. I mentioned a 2001 amendment: as many of you will probably be aware, part 12 of the Anti Terrorism, Crime and Security Act 2001, which came into force on Valentines Day (14 February) 2002, extended the jurisdiction of English courts over bribery and corruption offences to include corruption involving foreign public officials aboard. In other words, a criminal offence may now be tried in England and Wales if it is alleged it has been committed by a UK national or corporation engaged in corruption outside the United Kingdom.

Turning to the statutory offences under the 1889 and 1906 Acts: The 1889 Act makes it an offence for any person to corruptly solicit or receive, or agree to receive, for himself or another, any gift, loan, fee, reward or advantage as an inducement to or reward for doing or forbearing to do anything, in respect of any matter or transaction in which the said public body is concerned. Similarly, anyone who gives, promises or offers any gift, etc. in the same terms is also caught by the Act. When first introduced, the 1889 Act was limited to corruption in local bodies, but, in its amended form, it also covers corruption in central government. You will see that the “advantage” be it a gift, loan, reward, etc. is defined very widely.

A similar, broad, definition of what can constitute a bribe is there for the offences created under the 1906 Act. That Act creates two offences of corruption with agents and a further offence relating to false documentation. The offences with agents cover the agent who corruptly obtains, or agrees to accept, or attempts to obtain, from any person and whether for himself or for another, any gift or consideration as an inducement or reward for doing or forbearing to do any act in relation to his principal’s affairs or business; whilst the second agent offence criminalises the person who corruptly gives or agrees to give, or offers any gift or consideration; again in largely the same terms as the first offence.

The statutory corruption offences carry a maximum sentence of seven years, Common law bribery and misconduct in public office, as common law offences, carry a maximum of life imprisonment. However, as a matter of parity, a sentencing court in a common law bribery case will confine itself to a range up to the statutory maximum of seven years.

On the subject of punishment, the 1889 Act provides for various disqualifications, including a disqualification from ever holding public office, whilst the 1906 Act provides for no such bars. However, the provisions relating to the disqualification of company directors and the confiscation provisions which appear in the Proceeds of Crime Act 2002 apply as appropriate.

The statutory offences require the consent of the Attorney General before a prosecution may take place; the common law offence of bribery requires only notification to the Attorney General.

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In addition, most anti-corruption prosecutors set great store by the offence of misconduct in a public office. Its value is at least fivefold:

• Asinglechargemaybeusedtoreflectanentirecourseofconduct;

• Itmaybeusedtoreflectseriousmisconductwhichistruly‘criminal’butwhichcannotbesatisfactorilyreflected by any other offence;

• Itmaybeusedtoreflectbehaviourwhichwouldamounttopervertingthecourseofjusticeincircumstanceswhere the ‘course of justice’ is fictitious (i.e. created by those carrying out an integrity test);

• Asconfidential informationbecomesincreasinglyvaluabletocriminalsorcommercial interests, itmay be used to reflect the unlawful passing of such information when other offences (e.g. under the Data Protection Act 1998) are limited/give the court only limited sentencing options;

• Sentence is at large (unlike the statutory corruptionoffenceswhichcarry amaximumof sevenyears’ imprisonment).

As to fraud offences: since 2006, the UK has had the Fraud Act. Under that Act a person can commit fraud in three different ways. All three ways require the element of dishonesty. It should be noted, in contrast, that a bribery or corruption offence does not necessarily involve the element of dishonesty. Fraud under the Fraud Act may be committed by false representation (Section 2) by failing to disclosure information (Section 3), or by abuse of position (Section 4).

A person who is guilty of fraud is liable on a conviction on indictment, to imprisonment for a term not exceeding 10 years and/or an unlimited fine.

In addition to fraud, a natural legal person who commits an offence of bribery at common law or an offence under one of the corruption statutes will usually also have committed an offence involving dishonesty in the course of his corrupt conduct. Such offences will typically, in addition to fraud, include theft or false accounting. Further, if two or more people are involved, there may be a conspiracy to defraud.

False accounting, in particular, is worth focusing on for a moment or two. In circumstances where there has been an off the books payment or a disguised commission, false accounting will usually be one of the offences committed. It is criminalised by virtue of Section 17 of the Theft Act 1968 and makes it an offence for a person dishonestly, and with a view to gain for himself or another or with intent to cause loss to another, to destroy, deface, conceal or falsify any account, record or document made or required for any accounting purpose. In addition, Section 17 also criminalises the person who, again, dishonestly, and with a view to gain for himself or another or intent to cause loss to another, furnishes information and in doing so produces or makes use of any account, or record or document which, to his knowledge, is, or may be, misleading, false or deceptive in a material particular. The false accounting offence carries, on conviction, a maximum sentence of seven years and/or an unlimited fine. In the event of conviction, one disadvantage, from a prosecutor’s point of view, of prosecuting corrupt behavior by virtue of the dishonesty offences is that, on conviction, disqualification from public office and similar sanctions which can be imposed for bribery and for corruption under the 1889 Act, are not available to the sentencing court.

International Co-operation: Evidence Gathering & Asset Recovery

Prosecutors and investigators sometimes have recourse to mutual legal assistance (MLA) without exploring whether informal mutual assistance would, in fact, meet their needs. The UK has consciously tried to redress this. It is often forgotten that the State receiving a request for MLA might welcome an informal approach that can be dealt with efficiently and expeditiously. Prosecutors must thus ask themselves whether they really need a formal letter of request to obtain a particular piece of evidence.

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The extent to which States are willing to assist with a formal request does, of course, vary greatly. In many cases, it will depend on a particular State’s own domestic laws, on the nature of the relationship between that country and the requesting State, and, it has to be said, the attitude and helpfulness of those on the ground to whom the request is made. The importance of excellent working relationships being built up and maintained trans-nationally cannot be too greatly stressed.

Although no definitive list can be made of the type of enquiries that may be dealt with informally, some general observations might be useful. Variations from State to State, must, however, always be borne in mind.

•Iftheenquiryisaroutineoneanddoesnotrequirethecountryofwhomtherequestismadetoseekcoercive powers, then it may well be possible for the request to be made and complied without a formal letter of request.

• Theobtainingofpublicrecords,suchaslandregistrydocumentsandpapersrelatingtoregistrationof companies, may often be obtained informally.

• Potential witnessesmay be contacted to see if they arewilling to assist the authorities of therequesting country voluntarily.

• Awitnessstatementmaybetakenfromavoluntarywitness,particularlyincircumstanceswherethat witness’s evidence is likely to be non-contentious.

• Theobtainingoflistsofpreviousconvictionsandofbasicsubscriberdetailsfromcommunicationsand service providers that do not require a court order may also be dealt with in the same, informal way.

Equally, it is possible to draw up a guidance list of the sorts of request where a formal letter will be required:

• Obtainingtestimonyfromanon-voluntarywitness.

• Seekingtointerviewasuspectundercaution.

• Obtaining account information and documentary evidence from banks and financialinstitutions.

• Requestsforsearchandseizure.

• Internetrecordsandthecontentsofemails.

• Thetransferofconsentingpersonsintocustodyinorderfortestimonytobegiven.

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Civil Recovery of Illicitly Obtained Assets

The UK has introduced legislation permitting the civil recovery (civil forfeiture) of the proceeds of unlawful conduct in the absence of a criminal conviction4. Originally vested only in the ARA, the Serious Crime Act 2007 extended these civil recovery powers to SOCA, the CPS, the SFO, and others5. The authority exercising these powers has to establish that on the balance of probabilities the assets claimed derive from unlawful conduct. In doing so, the authority must also prove that a criminal offence was committed, and that the property derives from that offence. Evidence of a specific offence is unnecessary, but the authority must at least prove the class of crime said to constitute ‘unlawful conduct’ (for example robbery, theft, fraud)6. It is not enough simply to demonstrate that a defendant has no identifiable lawful income. Such cases are brought in the High Court.

Information from both SOCA and the CPS suggest that these agencies intend to use civil recovery powers to a greater extent than in the past, with corruption cases likely to feature strongly. SOCA has a key role in the UK’s response to the World Bank’s StAR Initiative and expects to make full use of its civil recovery powers.

The SFO has already exercised its civil recovery powers in a case involved alleged overseas corruption. On 6 October 2008, it was announced that Balfour Beatty plc had agreed to pay £2.25 million to settle civil recovery proceedings brought by the SFO in relation to “inaccurate accounting records” maintained by a subsidiary “arising from payment irregularities” in relation to a contract for the construction of the Bibliotheca Project in Alexandrina, Egypt.

4 Under Part 5 of POCA

5 The Act also provided for the merger of the operational element of ARA with SOCA, a merger that took effect on 1 April 2008.

6 See Green [2005] EWHC Admin 3168 and Szepietowski [EWCA] Civ 766