UK Law and Practice Contributed by: Simon Bushell and Gareth Keillor, Seladore Legal
Interim relief in support of foreign proceedings
sure, or providing inadequate/false information, may lead to a finding of contempt of court (and therefore a fine or, in serious cases, imprison - ment). In an effort to ensure compliance with the dis - closure 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 jurisdiction until A claimant may obtain a search and seizure order giving the claimant (or their solicitors/agents) access to relevant premises and allowing them to take possession of specified evidence such as documents, computers, electronic data, etc. The purpose of such an order is to preserve (rather than obtain) evidence in circumstances where there is a real risk that it might otherwise be destroyed. These orders are only available in very limited circumstances. Where they are granted, an independent supervising solicitor will oversee the process to ensure it is conduct - ed in a manner that is consistent with the terms of the order. Terms and conditions In applying for a search and seizure order, it is necessary to specify which premises will be searched. Those premises must normally be in the United Kingdom and under the defendant’s control. No material may be removed from the premises unless it is specifically identified in the order (and accordingly, orders cannot include any “catch-all” wording), nor can legally privi - leged material be obtained. The claimant will typically need to provide “cross-undertaking in the court orders otherwise. 2.2 Preserving Evidence Search and Seizure Order
The English court may grant interim relief (includ - ing freezing injunctions) to support proceedings that have been brought in a different jurisdiction. 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 conflicting/overlapping restrictions in different jurisdictions. 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets A freezing injunction (discussed in detail in 1.7 Prevention 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 overseas locations in the case of a worldwide order). Such disclo - sure 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 purpos - es 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 disclo -
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