Freezing Injunction

Legal Framework

Freezing injunctions are primarily governed by the Civil Procedure Rules (CPR), specifically under Part 25, which deals with interim remedies and security for costs. Additionally, case law plays a significant role in shaping the application and interpretation of freezing injunctions, with landmark cases such as Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] laying the foundation for their use.

A freezing injunction can be sought in domestic and international contexts, allowing for the restraint of assets located within the jurisdiction of England and Wales and overseas. The extraterritorial reach of such injunctions is particularly crucial in a globalised economy where assets can easily be moved across borders.

Criteria for Issuing a Freezing Injunction

For a freezing injunction to be granted, the applicant must satisfy several stringent criteria:

1. A Good Arguable Case: The applicant must demonstrate that they have a good arguable case on the merits of the substantive claim. This does not require proving the case to the standard of a trial, but the claim must not be frivolous or vexatious.
2. Risk of Dissipation: There must be a real risk that the defendant will dissipate or conceal their assets, making it difficult or impossible to enforce a future judgement. This risk must be evidenced clearly and convincingly.
3. Balance of Convenience: The court must consider whether the balance of convenience favours granting the injunction. This involves weighing the potential harm to the applicant if the injunction is not granted against the potential harm to the defendant if it is.
4. Full and Frank Disclosure: The applicant is obliged to make full and frank disclosure of all material facts, including those that may be adverse to their case. Failure to do so can result in the injunction being discharged.

Application Process

The process for applying for a Freezing Injunction involves several detailed steps:

1. Preparation of Evidence: The applicant must gather and prepare comprehensive evidence to support the application. This includes affidavits, witness statements, and documents demonstrating the risk of dissipation and the merits of the substantive claim.
2. Ex Parte Application: Freezing Injunctions are typically sought on an ex parte basis, meaning without notice to the defendant. This prevents the defendant from moving assets before the injunction is granted. The application is made to the High Court, accompanied by a detailed affidavit setting out the grounds for the injunction and the evidence in support.
3. Court Hearing: At the ex parte hearing, the judge will consider the evidence presented and determine whether the criteria for a Freezing Injunction are met. If satisfied, the judge will grant the injunction, usually for a limited period until a full inter partes hearing can be held.
4. Service and Compliance: Once granted, the injunction must be served on the defendant and any third parties holding the defendant’s assets, such as banks. The defendant must disclose their worldwide assets and comply with the injunction’s terms.
5. Inter Partes Hearing: A full inter partes hearing is held shortly after the ex parte injunction is granted. Both parties can present their arguments, and the court will decide whether to continue, vary, or discharge the injunction.

Implications of a Freezing Injunction

The issuance of a freezing injunction has significant implications for both the applicant and the defendant:

1. For the Applicant: The injunction provides a vital tool to prevent the defendant from evading justice by hiding or dissipating assets. However, obtaining and enforcing a freezing injunction can be costly and time-consuming. The applicant must also provide an undertaking in damages, which is a promise to compensate the defendant if it is later found that the injunction should not have been granted.
2. For the Defendant: A freezing injunction can severely restrict the defendant’s ability to manage their assets and conduct business. It requires detailed disclosure of their assets, which can be invasive. The defendant may also incur significant legal costs in challenging the injunction and demonstrating compliance.
3. For Third Parties: Banks and other institutions holding the defendant’s assets may also be impacted, as they must comply with the injunction’s terms and freeze the specified assets. They may face liability if they fail to do so.

Challenges and Controversies

Freezing injunctions, while powerful, are not without their challenges and controversies:

1. Evidential Hurdles: Proving the risk of dissipation can be particularly challenging. Applicants must present cogent evidence, often requiring the assistance of forensic accountants or investigators.
2. Balance of Fairness: Courts must carefully balance the need to prevent asset dissipation with the defendant’s right to conduct their affairs. Overly broad or unjustified injunctions can cause significant harm to the defendant.
3. Costs and Undertakings: The costs associated with obtaining and enforcing a Freezing Injunction can be substantial. Additionally, the requirement for an undertaking in damages can be a significant financial burden for the applicant.
4. Cross-Border Issues: In cases involving international assets, enforcement can be complex and requires careful consideration of the laws and procedures in the relevant foreign jurisdictions.

Case Law and Precedents

Several key cases have shaped the landscape of Freezing Injunctions:

1. Mareva Compania Naviera SA v International Bulkcarriers SA [1975]: This landmark case established the principle of the Freezing Injunction, setting the stage for its use in English law.
2. Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG (The Niedersachsen) [1984] 1 All ER 398: This case clarified the requirement for a good arguable case and the need for a real risk of asset dissipation.
3. Fourie v Le Roux [2007] UKHL 1: This House of Lords decision emphasised the importance of full and frank disclosure by the applicant and the consequences of failing to meet this duty.

Conclusion

Freezing injunctions are an important tool in civil litigation, allowing assets to be preserved and ensuring that judgements can be enforced. The legal framework, which is based on the Civil Procedure Rules and developed through case law, ensures that these injunctions are used fairly and carefully. The criteria for obtaining a freezing injunction are strict, but necessary to prevent misuse and ensure that the remedy is only used when genuinely needed.