UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
Remedies Assisting With International Claims For preventing the dissipation of overseas assets, English courts have developed two remedies that
In the case of a freezing injunction, the claimant must show that it is expedient for the order to be granted. This will depend on matters such as: • the domicile of the defendant; • whether granting the order will interfere with the case-management powers of the foreign court; and/or • whether the order will create the possibility of con - flicting/overlapping restrictions in different jurisdic - tions. 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets A freezing injunction (discussed in detail in 1.7 Pre- vention of Defendants Dissipating or Secreting Assets ) will typically require the defendant to swear an affidavit giving details of assets they have a legal or beneficial interest in. This includes details as to the value and location of any such assets (including over - seas locations in the case of a worldwide order). Such disclosure may also be ordered by the court prior to any application for a freezing order (although this is uncommon given that one of the main purposes for seeking disclosure is to guard against the dissipation of assets, and that purpose would be undermined if a freezing order has not been put in place). The defendant may be required to submit to cross- examination if there are any concerns regarding the disclosure they have given. Failure to comply with the requirement to give disclosure, or providing inad - equate/false information, may lead to a finding of contempt of court (and therefore a fine or, in serious cases, imprisonment). In an effort to ensure compliance with the disclosure requirements (as well as a freezing and/or search and seizure order), in appropriate cases it is possible to obtain an order requiring the defendant to hand over their passport to the claimant’s solicitor. Such an order ensures that the defendant cannot leave the jurisdic - tion until the court orders otherwise.
assist with international claims. Worldwide freezing injunctions
English courts have shown a willingness to be dynam - ic in respect of freezing injunctions with an interna - tional aspect. Examples of this include: • orders being granted in circumstances where the defendant has no significant presence in England and Wales; and • orders preventing a defendant from dealing with their overseas assets unless they transferred a specified value of assets to England and left them there for the duration of the order. The requirements associated with a worldwide freez - ing order are similar to those associated with a gen - eral, domestic freezing order. The notable exceptions, however, are that the claimant must show that: • any assets the defendant has in England and Wales are insufficient to satisfy the claim; and • there are suitable assets in other jurisdictions. The relevant court will also give consideration to issues such as the interests of other parties or credi - tors, either in England and Wales or overseas. When making an order, the defendant is entitled to additional protections, given the risk that they may face proceedings in each jurisdiction where their assets are located. Accordingly, orders typically con - tain a provision that they will not be enforced outside England and Wales without the permission of the Eng - lish court. Even if permission is granted by the Eng - lish court, the process of actually enforcing a world - wide order abroad can be problematic depending on the location of the parties, the relevant international agreements and so on. Interim relief in support of foreign proceedings The English court may grant interim relief (including freezing injunctions) to support proceedings that have been brought in a different jurisdiction.
362 CHAMBERS.COM
Powered by FlippingBook