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The Big Read
Why pre-action asset tracing has become essential for litigation strategy
by Martin Dubbey
The assumption that asset recovery is a post-judgment problem is costing law firms and their clients’ money, time, and leverage. Here is what I see when intelligence is brought forward to the start of a dispute.
In many civil disputes, asset tracing still sits at the end of the process: issue proceedings, litigate, obtain judgment, then investigate – often only when enforcement proves difficult.
That sequencing made sense when corporate structures were more transparent and asset movements were slower. In today’ s commercial environment, especially in cross-border disputes, it can mean litigating without knowing whether recovery is realistic or losing the window to preserve assets.
The result is a growing gap between the legal outcome a client achieves and the financial outcome they experience. Winning in court does not guarantee recovery, and by the time judgment is obtained, the asset picture may have shifted materially.
What happens to assets during litigation?
Defendants do not wait for judgment before considering the implications of an adverse outcome. Corporate restructuring can begin early in proceedings. Beneficial ownership can be moved. Property interests can be transferred. By the time enforcement is attempted, the visible asset pool may bear little resemblance to what existed when the dispute began.
This is not always deliberate concealment. It can reflect entirely lawful reorganisation. But from the perspective of a claimant seeking recovery, the practical effect is the same. The assets that were there when the claim was viable are no longer accessible when enforcement begins.
This problem is compounded in crossborder situations. Different jurisdictions offer different levels of transparency. Different corporate registries disclose different information. And the time required to obtain enforceable orders in multiple jurisdictions gives defendants, acting in good faith or not, a substantial opportunity to restructure their affairs.
What can pre-action intelligence deliver?
Intelligence-led asset tracing, conducted before proceedings are issued, typically strengthens litigation strategy in three ways:
• Viability assessment: establish whether there are accessible assets capable of satisfying a judgment, and use that picture to decide whether to proceed, how to structure the claim, and what interim remedies to seek.
• Strategic leverage: build an evidenced view of the defendant’ s asset position( including interests not volunteered in correspondence) to sharpen settlement discussions and reduce scope for implausible statements about ability to pay.
• Interim remedy support: support applications such as freezing orders and worldwide injunctions with clear, court-ready evidence of the asset base and indicators consistent with dissipation risk.
What modern asset tracing involves
The playing field has changed over the past decade, but investigative support is still often commissioned