Victim of a scam? What you can do and if you can sue.
Tom Maple, Partner and Head of the Dispute Resolution and Litigation team, considers what you can do to recover your money if you have been scammed.
Although scams still happen in person, it is far easier to become a victim online, with phishing emails and cyber-attacks common in today’s news. Whether you have been tricked into giving your money away or someone has intercepted bank details, anyone can be scammed. It is a scary experience, leaving you feeling vulnerable. It is important to know what you can do, and what we can do to help.
What to do if you have been scammed?
If you have transferred money to the scammer, or they have taken money from your account, contact your bank as soon as possible and explain the situation.
If you think the scammer has your personal banking details, then the bank may well recommend that you freeze the relevant account.
Report the scam to the police if the scammer was local or you transferred money to the scammer in the last 24 hours. Scams can be reported to a number of organisations, such as Action Fraud and Trading Standards. Scam emails can be forwarded to the National Cyber Security Centre at [email protected].
Can you recover your money?
In most instances, if you have paid through a bank, you may be able to get your money back. This includes whether you were scammed into giving money (authorised push payment) or whether someone took money from your account themselves (unauthorised transaction).
If you have bought something from a scammer and paid by card or Paypal, the card provider can request the seller’s bank to refund the money under what’s known as the chargeback scheme. If you used a credit card and paid between £100 and £30,000 you may be able to claim under the Consumer Credit Act 1974 to obtain a refund.
If you paid by bank transfer or direct debit, you may also be eligible for a refund. Many direct debits have a guarantee covering authorised push payments, so check with your bank to see if your situation is covered.
In cases where you are claiming a refund from your bank, you will need to show that you followed their security warnings, you believed the transaction was genuine and you were not being careless or negligent in making the payment. Check the terms and conditions of your bank or service to assess if you are eligible for a refund.
If you paid through a money transfer service such as Western Union, it is more difficult to obtain a refund and you will need to check directly with the service to determine if a refund is possible.
What if the bank or third-party withholds information?
The scammer’s bank may refuse to provide the refund or details of their client, as they are under a duty of confidentiality to them.
If the bank refuses the refund or refuses to provide you with relevant information, then one option which is open to you, is to apply for a Norwich Pharmacal Order (NPO).
An NPO is a court order which requires the third-party respondent (usually a bank in these sorts of cases) to disclose certain information or documents, which leads to the identity of the scammer. This information is vital to allow you to commence proceedings against the individual. NPOs can be granted abroad but this is difficult to do, and courts have been reluctant to do so in the past.
In order to pursue an NPO, the following criteria must be satisfied:
- There must be an arguable case of wrongdoing i.e. more than a 50% chance of success
- The order is necessary to act against the wrongdoer
- The respondent must not be a potential party to the proceedings
- The respondent must be involved or mixed-up in the wrongdoing, usually innocently
- The respondent must not be a mere witness
- The respondent must have the information requested
The court will also consider the public interest in enforcing the disclosure of confidential information, balancing this with privacy and data protection.
NPOs are only granted where necessary, so it is recommended to contact the respondent and request disclosure of the key information first. When applying for an NPO, the applicant must give full and frank disclosure themselves, which means providing information to the court and respondent that would both help and hinder their case. Where NPOs need to be used, the respondent should be given notice of the application where possible.
It is also important to note that the applicant is responsible for their own costs in the NPO proceedings, and usually both the respondent’s legal costs and the costs incurred of complying with the order.
Can you take the scammer to court?
Scams are increasingly more elaborate, making it more difficult to identify the scammer. But once identified, can you take them to court?
If the scammer is hidden abroad, taking them to court in the UK will be a costly and difficult process, which is unlikely to be worthwhile.
If the scammer can be identified more locally, then whilst each case turns on its facts and a cost benefit analysis must be undertaken (not least to see if the scammer has assets), it is possible to bring proceedings against them for damages, being the sums lost and any consequential losses.
If you have suffered a loss from a scam and would like to discuss NPOs or court proceedings, please contact the writer or the wider dispute resolution team.