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Freezing Injunctions And Search Orders Notes

BPTC Law Notes > BPTC Civil Ligitation Notes

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Freezing Injunctions What is a freezing injunction?

What is the procedure for applying for a freezing injunction?

What are the requirements for the court to make an order for a freezing injunction?

What terms must be incorporated into an order for a freezing injunction?

Can a freezing order be varied or discharged, and on what grounds?

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. 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. 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. The terms to be included can be divided into topics: Undertakings by Claimant ('C') (a) To pay damages to defendant ('D') should the injunction be found to have been incorrectly made; (b) To notify D forthwith of the terms of the order (since made without notice); (c) To pay reasonable costs and expenses of third parties ('TPs') in complying with the order; and (d) To indemnify any TPs in respect of any liability incurred as a result of the order. (e) [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: (a) General order, which covers all D's assets; (b) Maximum-sum order, which covers D's assets up to the highest amount that the case may require; and (c) Orders attached to specific assets. 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 o Case unsuitable for freezing injunction - one of the requirements is not made out, e.g. good arguable case; o D agrees to provide sufficient security for the claim; o Where the order was made where C did not make material disclosures; o Unfair conduct on the part of the C;

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