Power to make order established in Mareva Compania Naviera SA v International Bulk Carriers SA [1980] 1 All ER 213 as further defined in CPR Part 25(1)(F), as an order:

• restraining a party from removing from the jurisdiction assets located there; or

• restraining a party from dealing with any assets whether located within the jurisdiction or not

A defendant subject to a freezing order means that

your ability to handle your financial affairs is severely restricted.

Why? Well perhaps because someone claims that you owe them money or they have a valid claim for damages against you.

They haven’t proved their claim, let alone got a judgment against you.
They may not even have issued a claim form yet.
However they’ve obtained an order preventing you from disposing of your property until there’s a trial which could be months or even years away – a potentially catastrophic situation for you and your business. And they’ve done all this behind your back and without giving you any chance to have your say.

Almost always made without notice

Definition	A search order requires a defendant to allow a claimant’s representatives to enter into his premises and search for, copy or remove documents or materials. The purpose of the search order is to preserve evidence in circumstances where there is a significant risk that the defendant will destroy or dispose of such evidence. A freezing injunction is a court order which either restrains a party from removing or dealing with assets from the jurisdiction of England and Wales or restrains a party from dealing with any assets whether located within the jurisdiction or not.
Claimant must show	Procedure to obtain the Freezing Order: The applicant must show which is interim to the claim Good arguable case AFTER full disclosure Failure to full disclosure could result in interim order being set aside together with costs and damages Defendant has property in jurisdiction and intends to deal with the property so as to frustrate the enforcement of the claimant’s judgment (usually needs to be evidence that the removal of assets will be done with a corrupt or dishonest purpose) Procedure to obtain the Search Order The applicant must show Extremely strong prima facie case Claimant will suffer or continue to suffer serious harm if order not made Defendant has materials unobtainable by other means
Need to prepare	Application notice – Form N244 Affidavit in support PD25A para 3.1 (more serious than Witness Statement, sworn reasons why application without notice)
Where to apply?	- High court judge (PD25A 1.1) - Masters and district judges in high court have power to grant injunctions 1) by consent 2) in connection with charging orders and appointment of receivers 3) in aid of execution of judgements (PD25A 1.2) - NOT in country court except in very limited situations
Timing	Application can be made at any time (CPR 25.2): Before proceedings have started (if satisfy 25.2.2 i) matter is urgent or ii) necessary in interest of justice) - likely During proceedings; or After judgement given. NB. Court has no jurisdiction when applicant doesn’t intend to issue proceedings Issue claim form or undertake to do so (PD25A para 4.4(1) Issue at least 2 hours before the hearing (PD25A para 4.3(1) Affidavit must be in issued in support (PD25A – para 3.1) Why no notice given, evidence to support Court must feel there is good reasons for not giving notice Draft order(on a disk) Court will hear application If order granted court sets return date (Claimant undertakes to issue application notice for the continuation of the order with a return date) Claimant/any Third Party’s affected (banks who hold assets for Defendant for a Freezing Injunction etc, this isn’t an undertaking, just something applicant can do in order to more effectively enforce the injunction.) MUST personally serve all docs (or if search order supervising sol will do this) (still need 3 days clear notice of hearing for defendant) The Freezing Injunction or Search Order The application notice – N244 Copy of the affidavit Any exhibits Full note of the hearing (if without notice must include full note of the arguments before the court)
WHAT HAPPENS NEXT?	Freezing Order takes effect immediately/Search Order date and time will be set There will be a full with notice hearing on the return date This will usually be 14 days after the initial hearing Costs will be dealt with at return hearing – not fair to deal with at initial hearing as defendant won’t be there if without notice
WHERE WILL ANY HEARING TAKE PLACE?	General rule- hearing to be in public (CPR 39.2.1) May be in private if...(CPR 39.2.3), e.g. (a) publicity would defeat the object of the hearing; (e) made without notice and hearing would be detrimental to the defendant
World wide freezing injunction	Covers Defendant’s assets outside the jurisdiction ƒ Requirement to show • No assets in England and Wales • Evidence of large scale fraud • Ability to hide assets/transfer assets around the world

Search orders – Anton Piller injunctions

Claimant must show:

Extremely strong prima facie case AFTER full disclosure
Will suffer serious harm if order is not made
Defendant has materials UNOBTAINABLE by any other means.

FREEZING INJUNCTION		SEARCH ORDER
NATURE OF REMEDY	Prevents Defendant from disposing of his property pending trial of Claimant’s action against him - usually restricted to Defendant’s property within jurisdiction and limited in value to likely amount of judgment - usually obtained without notice and urgency and secrecy are necessary	NATURE OF REMEDY	Allow Claimant to enter Defendant’s premises for property belonging to Claimant or evidence that Defendant has been harming Claimant. If Defendant doesn’t comply then may face imprisonment for contempt of court - s.7 CPA 1997 - Requires Defendant to allow Claimant’s named representatives to enter and search, Claimant is not permitted to use force though - order used to recover property belonging Claimant which Defendant is using to harm Claimant. - also used to obtain evidence of wrongdoing
RELATED REMEDIES	- Orders preventing Defendant using his shares or voting rights they give in a way which may harm Claimant - If Defendant has already disposed of property then IA 1986 allows court in certain circumstances to set aside disposition in aid of Freezing Injunction	RELATED REMEDIES	- May be combined with freezing injunction. - May be combined with orders for disclosure and or further info - Even possible to obtain an order which prevents Defendant from leaving country for short period of time so he can comply with Search Order
INNOCENT Third Parties	People involved with Defendant are covered by order even if they are completely innocent of fraud - Freezing Injunction should NOT usually be used as banks as Defendant ’s or in respect of routine banking transactions - IF becomes public knowledge that Co-Defendant subject to Freezing Injunction then public confidence in business may be affected and Claimant should ask for Freezing Injunction application to be held in private
GROUNDS		GROUNDS
STRENGTH OF Claimant’s CASE	1. Claim must have a good arguable claim 2. As application without notice Claimant must make detailed investigations before seeking order and full disclosure of all relevant facts (both for and against case) [failure results in order being set-aside for non-disclosure] 3. Claimant’s obligation to full disclosure extends to facts discovered after making of the order	EXTREMELY STRONG PRIMA FACIE CASE	Claimant must show: Extremely strong prima facie case AFTER full disclosure Will suffer serious harm if order is not made Defendant has materials UNOBTAINABLE by any other means. Check Exam Facts
RISK THAT PROPERTY WILL DISAPPEAR	- Claimant must show that Defendant has property in the jurisdiction and that he may deal with it in a way that hinders enforcement - Court will not allow Freezing Injunction to be used to jump insolvency queue or as a means of putting unfair pressure on Defendant to settle - Evidence that Defendant is a debt dodger and that removal of assets will be done with a corrupt or dishonest purpose (dishonest can be with Claimant or other creditors) - Relevant how easily Defendant could move his assets out of Claimant’s reach (more likely with foreign Defendant’s) - Info about trading reputation of business and difficulties of enforcement in Defendant home country are helpful	C WILL SUFFER (CONTINUE TO SUFFER) SERIOUS HARM IF ORDER NOT MADE	Check Exam Facts
RISK THAT PROPERTY WILL DISAPPEAR		DEFENDANT HAS MATERIALS UNOBTAINABLE BY OTHER MEANS	- Alternative would be to apply on notice for order for delivery up of the goods s.4 Torts (interference with goods Act 1977 (provided by CPR 25.1(i)(e) - BUT it’s a real possibility that Defendant may destroy or dispose of materials/continue to exploit confidential info - Claimant will suggest that if application made on notice Defendant has opportunity to dispose materials being sought. - Furthermore court must be satisfied that harm likely to be caused to Defendant and business is not excessive/out of proportion to legitimate object of order

#13635 - Freezing Injunctions And Search Orders - Commercial Dispute Resolution

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