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Freezing Injunctions And Search Orders Notes

BPTC Law Notes > Commercial Dispute Resolution Notes

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Freezing Injunctions and Search Orders The TestsFreezing injunction o Must be:
? A cause of action justiciable in EW??

Can be granted where proceedings commenced overseas?

Merits test

C must identify a cause of action against D A good arguable case Higher than American Cyanamid (serious issue)

Kerr LJ:?A case which is more than barely capable of serious argument yet not necessarily one which has a better than 50% chance of success D has assets within the jurisdiction?

Equity will not act in vain - needs to be able to be enforced against assets?

Must be solid evidence

Can include money, shares, security, insurance, etc. A real risk that D will dissipate those assets Relevant factors: o Resp is reputable and accustomed to paying debts o Assets in jurisdiction o Domiciled in tax haven?
o Whether evidence supporting cause of action discloses dishonesty o Whether evidence of dishonesty elsewhere o Incidents of debt default o Evidence that steps already taken to remove/dissipate

o Undertakings:
? Damages
? Notify D of any terms of order
? Pay reasonable costs of TPs
? Indemnify TPs in respect of liability for compliance
? In urgent cases:
? Issue of CF
? File affidavitSearch orders o Only against D likely to destroy relevant evidence o Made without notice o Must be:
? Extremely strong prima facie case on the merits??
Freezing Injunctions

Significantly higher than for freezing injunctions Activities must be proved to result in very serious potential/actual harm to C's interests Clear evidence that incriminating documents are in D's possession Real possibility that such items may be destroyed before any application on notice can be made

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