Paul McGrath, COMMERCIAL FRAUD IN CIVIL PRACTICE Oxford: Oxford University Press (www.oup.co.uk), 2008. lv + 681pp. ISBN 9780199290574. £155.
| Date | 01 May 2010 |
| Pages | 345-347 |
| Published date | 01 May 2010 |
| DOI | 10.3366/elr.2010.0019 |
This is a book for practitioners and, as such, will be a welcome addition to the bookshelves of those practising in this field. It is written for the English practitioner, and some of the matters with which it deals are particularly germane to English law and practice. Practitioners in Scotland will, therefore, find it of less direct relevance. However, there are sections of the book which will nonetheless be of great interest to practitioners north of the border.
As the author points out in the first paragraph of the book, fraud is not in itself an activity; rather it is an attribute of the way in which various activities are carried out. Thus, the term “commercial fraud” covers a multitude of sins, and as many distinct interests for the civil practitioner. The aim of the book is to deal in one volume with the main areas of civil practice in which fraud plays an important part. The book does not aim to be comprehensive – for example, there is no discussion about proceeds of crime legislation, which often involves commercial fraud and applications which are civil rather than criminal – but it brings together under one head discussion about many aspects of fraud in commercial and corporate affairs with which the commercial practitioner will be concerned on a daily basis.
The book starts with a discussion of fraud as it is commonly understood, that is to say fraudulent misrepresentation or deceit, and travels through sections on statute-based liability under the Insolvency Act 1986, multi-party liability and the like. McGrath also discusses issues to do with conflict of laws and remedies. Much of this, or at least much of the discussion about the bases of liability as opposed to remedies, will be familiar to practitioners on both sides of the border. Perhaps of greatest interest is the discussion of “receipt-based liability” both at common law and in equity. The coverage of receipt-based liability in equity involves a consideration of the doctrine of “knowing receipt” which will be of interest to the Scots lawyer, though it goes on to discuss the topic in terms of an analysis of the various uses of the constructive trust, a topic which will be less immediately accessible. Receipt-based liability at common law, however, largely focuses on unjust enrichment, a topic with which Scots lawyers are familiar and, indeed, where Scots law may be said, at least from a Scottish perspective, to be ahead of the game.
The discussion of unjust enrichment repays careful...
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