The defendant had been acquitted of criminal charges and had an order for costs made in his favour. The claimant pursued a civil recovery order. The defendant sought a variation of the interim order.
Held: When considering such an application, the court should treat the issues as under property law so as to protect the proper aims of the agency. However in this case the assets freezing orders would be varied to allow payment of outstanding costs and fees for an MBA course he wished to follow. The freezing order did not create a proprietary interest. A defendant would be permitted to make payments towards his legal costs out of a fund subject to a proprietary claim only if he could show that no other funds were available for that purpose.
Stanley Burnton J said in relation to the interim (non-statutory) freezing order sought against the defendant to a Part 5 claim: ‘the principles applicable should be similar to those applicable to proprietary claims, but with allowance made for the fact that any depletion of the property frozen by the order will not be recoverable from any property of the defendant that is free from any claim under the Act. I say this because the clear policy of the Act is to deprive defendants of property obtained through unlawful conduct (unless they can establish one of the defences provided in the Act, which involve acting without notice that the property is recoverable property), and for that property to be transferred for the benefit of the community.’
Judges:
Stanley Burnton J
Citations:
Times 16-Nov-2005, [2006] 1 WLR 622, [2005] EWHC 2726 (Admin)
Statutes:
Proceeds of Crime Act 2002 Part 5
Citing:
Cited – Ostrich Farming Corportation Limited v Ketchell CA 10-Dec-1997
The court considered the principles to be applied on injunction applications within proprietary claims.
Held: Millett LJ explained the difference between a proprietary injunction and a Mareva freezing injunction: ‘The courts have always . .
Cited by:
Cited – Serious Organised Crime Agency v Szepietowski and Others (No 2) ChD 1-Jul-2009
The Agency asked to have set aside four orders allowing the defendant to have excluded from his assets subject to an interim receiving order to allow payment of his legal expenses.
Held: There was no rule that assets once excluded from an . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 10 May 2022; Ref: scu.235004