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#13699 - Freezing Injunctions And Search Orders - BPC Civil Litigation

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Freezing Injunctions

What is a freezing injunction? It is an interim order that restricts a party from removing assets located within the jurisdiction out of the country, or generally dealing with assets whether in the jurisdiction or not.
What is the procedure for applying for a freezing injunction?

A freezing injunction application must usually be:

  • Dealt with in the High Court;

  • Made to a judge sitting in private;

  • Made without notice in order to be effective;

  • Made before service of the claim form;

  • Made with full and frank disclosure; and

  • Supported by evidence within affidavits.

Following an granting of a freezing injunction, a hearing must be arranged a few days later on notice with the respondent being provided with all the evidence used by the applicant.
What are the requirements for the court to make an order for a freezing injunction?

It must be ‘just and convenient’ to do so; and the case is

  1. A cause of action justiciable in England & Wales;

  2. A good arguable case - this is high than ‘serious issue to be tried’, but doesn't require judge believing case has better than 50% chance of success;

  3. D having assets within the jurisdiction; and

  4. A real risk that D will dissipate his assets before judgment can be enforced - this required solid evidence.
What terms must be incorporated into an order for a freezing injunction?

The terms to be included can be divided into topics:

Undertakings by Claimant (‘C’)

  1. To pay damages to defendant (‘D’) should the injunction be found to have been incorrectly made;

  2. To notify D forthwith of the terms of the order (since made without notice);

  3. To pay reasonable costs and expenses of third parties (‘TPs’) in complying with the order; and

  4. To indemnify any TPs in respect of any liability incurred as a result of the order.

  5. [In cases of urgency to issue a claim form and to swear and file affidavits deposing the facts relied on by the judge.]

Assets covered by the order

This may either be a:

  1. General order, which covers all D’s assets;

  2. Maximum-sum order, which covers D’s assets up to the highest amount that the case may require; and

  3. Orders attached to specific assets.
Can a freezing order be varied or discharged, and on what grounds?

An application to vary or discharge a freezing injunction can be made under Part 23, either at the return on-notice hearing or at another hearing especially for the application.

Grounds for variation

  • Original order is more onerous to D than necessary; or

  • Imposes unnecessary obligations on a third-party.

Grounds for discharge

  • Case unsuitable for freezing injunction - one of the requirements is not made out, e.g. good arguable case;

  • D agrees to provide sufficient security for the claim;

  • Where the order was made where C did not make material disclosures;

  • Unfair conduct on the part of the C;

  • Failure on the part of the C to press on with the substantive proceedings after the order.

Search Orders

What is a search order? This is a bundle of interim orders that requires a party to permit another party to their premises for the purpose of preserving evidence which might otherwise be destroyed or concealed by the respondent.
What is the procedure for applying for a search order?

A search order is only available in the High Court or in the county court where a High Court or Court of Appeal (‘CoA’) judge is dealing with the application.

  1. Issue a claim form (unless application is extremely urgent);

  2. Issue an application notice in form N16A;

  3. Provide affidavits in support of application, which must include:

  1. Name and experience of the proposed supervising solicitor;

  2. Name and address of their firm;

  3. Very full reasons for seeking the order, including the possibility of relevant material disappearing should the order not be made;

  1. Provide a draft order; and

  2. Provide a skeleton argument in support.

Application is heard without notice, so there is a duty of full and frank disclosure.

What are the principles for granting a search order?

How are search orders executed?

Anton Piller KG v Manufacturing Processes Ltd:

  1. An extremely strong prima facie case on the merits;

  2. That D’s activities proven to result in very serious potential or actual harm to C’s interests;

  3. There must be clear evidence that incriminating documents or materials are in D’s possession; and

  4. There is a real possibility that such documents would be destroyed before any applications on notice could be made.

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