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Unit 4 – Freezing Injunctions And Search Orders Notes

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Unit 4 - Consolidation CDR OUTCOME 1 - procedure for obtaining and serving?Almost always made without notice WS = witness statement FI = freezing injunction SO = search order Need to

1. App notice - Form N244 prepare

2. Affidavit in support PD25A para 3.1 (more serious than WS, sworn reasons why app without notice) Where to
- High court judge (PD25A 1.1) apply?
- 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 Application can be made at any time (CPR 25.2): Timing
- 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

1. Issue claim form or undertake to do so (PD25A para 4.4(1)

2. 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

3. Court will hear app

4. If order granted court sets return date (C undertakes to issue app notice

WHAT HAPPENS NEXT?

WHERE WILL ANY HEARING TAKE PLACE?

for the continuation of the order with a return date)

5. C/any TP's affected (banks who hold assets for D for a FI 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)
- The FI or SO
- The app 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) FI takes effect immediately/SO 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 d won't be there if without notice 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

OUTCOME 2 - Grounds to be satisfied to persuade the court FREEZING INJUNCTION NATURE OF Prevents D from disposing of REMEDY his property pending trial of C's action against him
- usually restricted to D property within jurisdiction and limited in value to likely amount of judgement
- usually obtained without notice and urgency and secrecy are necessary RELATED
- Orders preventing D using his REMEDIES shares or voting rights they give in a way which may harm C
- If D has already disposed of property then IA 1986 allows court in certain circumstances to set aside disposition in aid of FI INNOCENT People involved with D are TP's covered by order even if they are completely innocent of fraud
- FI should NOT usually be used as banks as D's or in respect of routine banking transactions
- IF becomes public knowledge that Co-D subject to FI then public confidence in business may be affected and C should ask for FI app to be held in private GROUNDS STRENGTH 1. C must have a good arguable OF C's claim CASE

2. As app without notice C 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. C's obligation to full disclosure extends to facts discovered after making of the order RISK THAT - C must show that D has PROPERTY property in the jurisdiction and WILL that he may deal with it in a DISAPPEAR way that hinders enforcement
- Court will not allow FI to be

SEARCH ORDER NATURE OF Allow C to enter D premises for property REMEDY belonging to C or evidence that D has been harming C. If D doesn't comply then may face imprisonment for contempt of court
- s.7 CPA 1997
- Requires D to allow C's named reps to enter and search, C is not permitted to use force though
- order used to recover property belonging C which D is using to harm C.
- also used to obtain evidence of wrongdoing

RELATED REMEDIES

GROUNDS EXTREMELY STRONG PRIMA FACIE CASE

C WILL SUFFER (CONTINUE TO SUFFER) SERIOUS

- 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 D from leafing country for short period of time so he can comply with SO

Check Exam Facts

Check Exam Facts

used to jump insolvency queue or as a means of putting unfair pressure on D to settle
- Evidence that D is a debt dodger and that removal of assets will be done with a corrupt or dishonest purpose (dishonest can be with C or other creditors)
- Relevant how easily D could move his assets out of C's reach (more likely with foreign D's)
- Info about trading rep of business and difficulties of enforcement in D home country are helpful

HARM IF ORDER NOT MADE

D HAS MATERIALS UNOBTAINAB LE 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 D may destroy or dispose of materials/continue to exploit confidential info
- C will suggest that if app made on notice D has opportunity to dispose materials being sought.
- Furthermore court must be satisfied that harm likely to be caused to D and business is not excessive/out of proportion to legitimate object of order

PREP TASK - Cause of action
(c) = copyright LB,DW,WMB = parties in the prep task handed out in the workshop Misuse of confidential info WMB must show Materials had necessary quality of confidence
- yes

Materials imparted to DW in circs importing an obligation of confidence
- yes LB knew materials were confidential and improperly retained/used them
- NO, thought LB thought they were family photos DW & LB used the materials without WMBs permission
- NO, LB didn't realise they needed permission

Inducement to breach contract WMB must show LB knew of contract between WMB and DW
- D had no knowledge of the contract

Breach of (c)

LB intended to procure DW to breach contract
- Delia came to D WMB suffered damage
- WMB have clearly not suffered loss as a result of the above

Materials were artistic works

WMB must show Materials were original(c) exists in materials WMB produce for DW books
- yes

WMB owns (c)
- yes

LB copied substantial part of the materials
- yes A qualitative not quantitive test
-yes LB ARE INNOCENT INFRINGER BUT LOSES WILL BE VERY LITTLE AS WE HAVEN'T SOLD THE BOOK YET
- so it would be drastic action for WMB to take this draconian action based purely on the (c) action

1.Has applicant made out the core test for that type of injunction?
Obviously C did when they got the court to grant the order but still can argue FREEZING INJUNCTION:good arguable case AFTER full disclosure

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