Complex Investigations

Our investigation clients are typically organisations, boards, legal teams, insolvency practitioners and private clients facing a problem where the facts are disputed, assets or evidence may move, or the outcome could become contentious, regulatory or reputational.

The common denominator is not a particular industry; it is the need to move from uncertainty to an evidence-based decision. Typical matters include fraud and asset loss, employee or insider misconduct, theft of confidential information, cyber-enabled crime, anonymous online wrongdoing, cryptocurrency or digital-asset tracing, due diligence, and investigations supporting litigation or enforcement.

The attached case studies include a legal services company hit by business email compromise, an international manufacturer investigating confidential-data theft, insolvency administrators tracing assets after suspected fraud, a broadcaster investigating illegal streaming, and organisations dealing with employee embezzlement and intellectual-property theft. In cyber crises, the instructing stakeholders often include the General Counsel, CISO and board because technical facts rapidly create legal, regulatory and reputational decisions.

Mishcon’s investigation scope runs from financial and corporate investigations through digital evidence and cyber intelligence to asset recovery, blockchain analysis and litigation support.

The ‘Investigate’ portfolio in the Growing Mishcon materials covers finance and fraud investigations; asset tracing and recovery; digital forensics and evidence gathering; counterfeiting and IP investigations; internal investigation support; litigation, disputes and funding support; online privacy and reputation; blockchain analysis; and due diligence.

There is deliberate overlap with Mishcon Escalate. A cyber incident may begin as incident response, then require fraud investigation, data-breach analysis, asset tracing, blockchain tracing, court remedies or a post-incident review. The value proposition is that clients do not need to create a new team or governance structure each time the problem crosses from technical investigation into law, regulation, recovery or reputation.

A typical brief is: establish what happened, identify who was responsible, locate the evidence or assets, and give the client practical options for what to do next.

The investigation is usually tied to a decision rather than to fact-finding for its own sake. A client may need to decide whether to notify a regulator, commence or defend proceedings, seek an injunction, make a criminal complaint, dismiss an employee, recover funds, stop an impersonation campaign, or determine whether litigation is economically worthwhile.

Good briefs define the key questions, urgency, relevant jurisdictions, decision deadlines, evidence standards and intended use of the findings. That matters because an investigation designed for board assurance is different from one that may need to support an urgent without-notice court application. Mishcon’s model is to keep the investigative objective and the legal remedy aligned from the outset.

Complex investigations usually combine evidence preservation, digital and financial analysis, intelligence gathering, legal strategy and a disciplined process for turning findings into action.

Depending on the matter, activities can include forensic collection and imaging of devices or cloud data; analysis of email, Microsoft 365, SharePoint and other logs; open-source and corporate intelligence; person and relationship profiling; review of bank statements and transaction records; asset tracing; blockchain transaction tracing; examination of company and beneficial-ownership structures; threat intelligence; online evidence capture; interviews; chronology and link analysis; and preparation of court-ready or regulator-ready reports.

Where litigation or enforcement is in prospect, evidence handling becomes especially important: provenance, timestamps, chain of custody, reproducibility and a clear explanation of technical findings can determine whether the evidence is useful. Investigators may also need to identify the bank, exchange, hosting provider, registrar, platform or other third party against which disclosure, preservation, takedown or injunctive action can be directed.

English courts can provide powerful interim remedies to preserve assets and evidence, obtain information and prevent ongoing harm while an investigation or claim develops.

Relevant tools can include freezing injunctions; proprietary injunctions over specific assets or traceable proceeds; orders requiring information about assets; search orders; imaging orders for electronic data; pre-action and non-party disclosure; and third-party information orders such as Norwich Pharmacal and Bankers Trust orders. In the right case, these can identify an unknown wrongdoer, reveal destination accounts, preserve evidence, stop assets being moved or give an independent expert access to electronic data.

Other routes can include IP and website injunctions, private prosecutions, enforcement measures after judgment, and requests to banks, registrars, hosting providers or platforms to preserve or remove abusive infrastructure. The precise remedy depends on the cause of action, the evidence, the jurisdiction and the urgency. Court orders are exceptional remedies and require careful evidence and drafting.

The main advantage is speed from evidence to remedy: the same governance structure can decide what evidence is needed, collect it defensibly, interpret it, and immediately use it to support recovery, an injunction, regulatory advice or litigation.

That reduces hand-offs, duplicated work and the risk that a technically sound investigation produces evidence in a form that is difficult to use in court. It also helps teams sequence actions correctly. For example, notifying a suspect too early can create a risk of asset dissipation or evidence destruction; freezing or disclosure relief may need to come first.

Unified governance also makes it easier to align investigative activity with legal advice, regulatory communications and commercial objectives. Where the legal tests are met, work can be structured so that legal advice or litigation-preparation material attracts privilege. Just as importantly, the technical team understands from the beginning what the lawyers will need to prove, and the lawyers receive fast, intelligible evidence rather than a forensic report detached from the remedy.

Rapid injunction work requires litigation expertise and fast, defensible evidence: lawyers and investigators must be able to turn incomplete facts into a precise, proportionate application that a judge can act on.

The legal team needs to understand the underlying claim, jurisdiction and service rules; the test for the chosen remedy; without-notice procedure; full and frank disclosure; cross-undertakings in damages; and the current model order. The investigative team needs to establish the facts that demonstrate urgency, identify relevant people and third parties, trace assets or infrastructure, and preserve evidence.

Technical findings must also be translated into clear evidence. A judge needs to understand, for example, why a blockchain trail points to a particular exchange, why email logs support account compromise, or why matching records establish data theft. Operational capability matters too: access to experienced counsel, out-of-hours court procedures, process servers, banks, exchanges, hosting providers and overseas lawyers can determine whether an order becomes effective in time.

In a civil fraud case, you do not simply ask a bank to ‘freeze an account’: you identify the money and the relevant account, move quickly with the bank’s fraud team, and where necessary apply to the court for freezing, proprietary and/or disclosure relief.

If the destination account is known, immediate contact with the bank may help prevent onward movement while the legal position is assessed. If the account holder or onward route is unknown, a Norwich Pharmacal or Bankers Trust order may be used to obtain KYC and transaction information from an innocent intermediary. A freezing injunction can restrain a defendant from dealing with assets; a proprietary injunction may be appropriate where the claimant asserts ownership of specific traceable funds.

The court will require evidence and, for freezing relief, typically a good arguable case, a real risk of unjustified dissipation and a conclusion that the order is just and appropriate. Without-notice applications carry demanding duties of full and frank disclosure and normally require a cross-undertaking in damages. Once made and served, the bank must act in accordance with the order.

Criminals routinely abuse ordinary commercial infrastructure because it is scalable, trusted and connected to real users: cloud email, domains, web hosting, social and advertising platforms, payment systems and cryptocurrency services can all become part of a fraud or cyber-crime chain.

Examples include compromised Microsoft 365 or other cloud accounts; lookalike domain names and DNS services; legitimate websites or hosting accounts taken over for phishing; online advertising and social-media accounts used for impersonation; bank accounts and money-mule networks used to receive or layer stolen funds; and cryptocurrency wallets, exchanges or custodians used to move digital assets.

This matters to investigations because legitimate service providers also create intervention points. They may hold logs, subscriber information, KYC data or transaction records; they may be able to suspend a domain, advert or account; and they can be the subject of preservation, disclosure or court orders. Mishcon’s model combines the technical work required to identify the infrastructure with the legal route for acting against it.

It is particularly important when the investigation is likely to lead to a court application, regulatory decision, asset recovery, employee action or public communication, because the sequence and purpose of investigative steps can change the outcome.

A technical or investigative team may discover the right fact but still lose the opportunity to act if the evidence is not preserved properly, a suspect is tipped off before assets are restrained, a regulator is told more than the evidence supports, or legal privilege is assumed rather than carefully structured. Unified governance creates one chain of command for evidence, legal strategy and communications.

It also allows the investigation to change gear without a disruptive handover. A cyber incident can become a fraud case; a fraud case can require a freezing order; a data-theft investigation can become litigation; or a forensic review can establish that regulatory notification is not required. Not every routine investigation needs full legal command, but for high-stakes, contentious or time-sensitive matters it is a material advantage.