Friday 23 November 2012

Conditions for a worldwide freezing order

A H Baldwin and Sons Limited & Others v Sheikh Saud Bin Mohammed Bin Ali Al-Thani [2012] EWHC 3156 (QB)

In a judgment handed down earlier this month in the Queen’s Bench Division it was held that the conditions for a worldwide freezing order had been made out and that an order should be made in support of proceedings in the United States.

The claimant auctioneers sought a worldwide freezing order to support a claim for payment from the defendant, a collector of art and antiquities, for the purchase of various lots in an auction of rare coins.  Despite the defendant’s assurances that he would pay the claimants for his purchase and explanations for his non-payment, no payment was forthcoming and the claimants issued proceedings in the United States.  The defendant, a member of the royal family of Qatar, was habitually resident in London for part of each year and the claimants sought to protect their position against the defendant dissipating his assets by obtaining a worldwide freezing order in the High Court.

Haddon-Cave J, in granting the injunction, held that s. 25 of the Civil Jurisdiction and Judgments Act 1982 required a two stage test when considering whether to grant an asset freezing injunction in aid of foreign proceedings. First, the court needed to consider whether the facts would warrant the relief sought if the substantive proceedings had been brought within the jurisdiction, and second, if the first limb of the test was satisfied, whether the existence of the foreign proceedings made it inexpedient to grant the injunction.

In ruling that the facts would warrant the grant of an order in domestic proceedings, the judge found that there was plainly a good arguable case on the merits given that the defendant admitted liability for the sums claimed.  Further there was also a real risk of dissipation of assets as: 

(1)    the defendant had no defence to the claim;

(2)    all explanations, excuses and promises made by the defendant had been unsatisfactory; and

(3)    evidence was heard of the ‘extraordinary behaviour’ that the defendant also owed large sums to other auction houses which Haddon-Cave J described as “discreditable, dishonourable and disturbing.”

The judge also relied upon the defendant’s unexplained behaviour in leaving the country, inaccuracies in relation to the disclosure of the defendant’s assets, and concerns relating to the defendant’s removal of his existing coin collection from London to Doha as justifying a real risk of dissipation.

Of particular interest to practitioners working with freezing injunctions is the observation by Haddon-Cave J at paragraph 44 of the judgment that he saw no reason why a “spiral of debt” around a limited pool of assets could not amount to a dissipation of assets in certain circumstances.
In relation to the issue of whether it would be ‘inexpedient’ to grant the injunction, the judge considered the following issues set out by Potter LJ in Motorola Credit v Uzan (No. 2) [2004] 1 WLR 133 at 115:
(1)    First, whether the making of the order would interfere with the management of the case in the primary court e.g. where the order is inconsistent with an order in the primary court or overlaps with it.

(2)    Second, whether it is the policy in the primary jurisdiction not itself to make worldwide freezing/disclosure orders.

(3)    Third, whether there is a danger that the order(s) made will give rise to disharmony or confusion and/or risk of conflict inconsistent or overlapping orders in other jurisdictions, in particular the courts of the state where the person enjoined resides or where the assets affected are located. If so, then respect for the territorial jurisdiction of that state should discourage the English court from using its unusually wide powers against a foreign Defendant.

(4)    Fourth, whether at the time the order is sought here is likely to be a potential conflict as to jurisdiction rendering it inappropriate and inexpedient to make a worldwide order.

(5)    Fifth, whether, in a case where jurisdiction is resisted and disobedience to be expected, the court will be making an order which it cannot enforce.

Having considered the factors above, Haddon-Cave J concluded that there was nothing in the case which prevented him from granting the injunction, to the contrary, the granting of the injunction would aid, rather than interfere with the US proceedings, and therefore it was not inexpedient to make the order.

The judgment serves as a useful and concise statement of the law relevant to both domestic freezing injunctions and applications for such an order under s. 25 Civil Jurisdiction and Judgments Act 1982 sought in support of foreign proceedings.

[At the time of writing, the case is only available on Lawtel.]