Olivier Kalfon, Caley Wright and James Kinman acted on opposing sides in this important appeal, which clarifies the scope of the Court’s powers to make orders in support of extra-jurisdictional proceedings, as well as providing valuable guidance regarding the matters which can be taken into account when determining whether an applicant for a freezing order has a good arguable case, and the approach which a respondent should take to questions of full and frank disclosure.

The case concerned a worldwide freezing order, made in support of Scottish proceedings pursuant to s. 25 of the Civil Jurisdiction and Judgments Act 1982. At first instance, the freezing order was set aside on the basis that the claimant had failed to establish a risk of dissipation; there were insufficient links between the respondents and England to make the order expedient; and the claimant had been guilty of serious breaches of its duties of full and frank disclosure.

On appeal, the Court grappled with the extent to which it was still necessary to establish close links to the jurisdiction to obtain an order under s. 25 following Brexit and the decision of the Privy Council in Broad Idea, together with the question of whether it was ever necessary to establish such links in circumstances in which an order was sought in support of proceedings in another part of the United Kingdom. It ruled that:

1. The requirement for a connecting link between England and the respondents to a s. 25 application derived from domestic as well as EU law, and so Brexit did not affect that requirement (expressing sympathy for the view that, even if the requirement did derive from EU law, the effect of Brexit legislation was such that the requirement remained part of English law in any event).
2. The widened ambit of the Court’s powers to grant freezing relief recognised in Broad Idea did not affect the exercise of the Court’s jurisdiction under s. 25.
3. The Court’s approach to applications under s. 25 in support of litigation in another part of the United Kingdom was the same as its approach to applications in support of litigation in another state.

The Court also clarified that foreign ex parte judgments cannot be taken into account in assessing whether or not an applicant for a freezing injunction has a good arguable case, and warned respondents that, if they did not narrow down complaints relating to full and frank disclosure to their best points, there was a danger that the Court would not entertain such complaints at all.

The appeal was dismissed. The Court found that the claimant had a good arguable case and, on the basis of new evidence, found that a risk of dissipation had been established. However, it upheld the Judge’s decision that there were insufficient links between the respondents and England to justify the freezing order, and that the breaches of full and frank disclosure at the ex parte stage were serious enough to justify discharge of the worldwide freezing order.

Olivier Kalfon and James Kinman acted for the successful respondents, instructed by Ayesha Salim of Howard Kennedy LLP.

Caley Wright, led by Thomas Grant KC and assisted by Daniel Petrides of Wilberforce Chambers, acted for the appellant, instructed by Mark Hastings and James Clark of Quillon Law LLP. (Different counsel and solicitors were instructed at the ex parte stage.)

Judgment can be viewed here.