UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
Worldwide freezing injunctions English courts have shown a willingness to be dynamic in respect of freezing injunctions with an international 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 trans- ferred a specified value of assets to England and left them there for the duration of the order. The requirements associated with a worldwide freezing order are similar to those associated with a general, domestic freezing order. The notable exceptions, however, are that the claim - ant 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 creditors, either in England and Wales or over - seas. 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 typ - ically contain a provision that they will not be enforced outside England and Wales without the permission of the English court. Even if permis - sion is granted by the English court, the process of actually enforcing a worldwide order abroad can be problematic depending on the location of the parties, the relevant international agree - ments and so on.
that are located overseas (a “worldwide freez- ing order” discussed in greater detail below). Furthermore, a freezing order can extend over various types of assets (normally bank accounts, shares and physical property, as well as things such as goodwill) provided that the defendant has a legal or beneficial interest in them. Excep - tions to the freezing order (eg, reasonable living costs, legal fees, ordinary business transactions, etc) are typically defined. In certain cases, it may be possible to obtain a proprietary injunction where a party claims a proprietary interest in a specific asset. There will generally be very limited exceptions to such an order. An application for a freezing order is made as a standard application to the court, but is a com - plex application, usually done without notice to the respondent and which requires an appli - cant to discharge its duty of full and frank dis - closure (see 2.4 Procedural Orders ). The court fees associated with this are reasonably mod - est. However, in making such an application the claimant will typically need to provide: • an undertaking to commence a claim shortly after the injunction hearing is determined; and • “cross-undertaking in damages” , meaning that they must compensate the defendant for any loss suffered if it is later shown that the injunction should not have been granted. It is sometimes necessary to secure the under - taking through a bank guarantee or payment into court. Remedies Assisting With International Claims For preventing the dissipation of overseas assets, English courts have developed two rem - edies that assist with international claims.
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