The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The defendant argued that information now used before the court could only have been obtained by means of a fraudulent pretext call.
Held: It must have been obvious to the claimants that the freezing order could not be maintained. His interests under the trusts were entirely discretionary, and he had no assets within the jurisdiction.
Indemnity costs were now sought against the liquidator. There was no sufficient reason for the application to have been made ex parte by telephone. The claimants had known of the imminence of the sale, and should have been able to give at least informal notice to the defendants and to have applied on paper if necessary over the weekend. Had the application been made both on paper and on notice, the defendant would have been able to satisfy the court of the propriety of the trust, and an order would not have been made.
Costs should be awarded against the liquidator, but only as a set-off against the debt claimed. A full order should not be refused since the errors had been innocent.
Judges:
Henderson J
Citations:
[2007] EWHC 2442 (Ch)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Cited – The Niedersachsen ChD 1983
In order to obtain, or to enlarge a freezing order, the applicant must show that in considering the evidence as a whole he has, at a minimum, a ‘good arguable case’, and also the existence of a real risk of dissipation or secretion of assets. . .
Cited – Derby and Co Ltd v Weldon CA 2-Jan-1989
The plaintiff sought damages for breach of contract, for negligence, breach of fiduciary duty and deceit and conspiracy. It sought a world-wide injunction.
Held: A freezing order (Mareva injunction) can be made in respect of assets which were . .
Cited – Thane Investments Ltd and others v Tomlinson and others CA 29-Jul-2003
Peter Gibson LJ emphasised that in freezing order applications, ‘it is important that there should be solid evidence adduced to the Court of the likelihood of dissipation.’ He went on to say that it was not enough merely to point to some dishonesty . .
Cited – In re First Express Ltd ChD 1991
A liquidator applied to discharge an order that had been made against him ex parte under section 234 requiring him to hand over books and records of the company in his possession to administrative receivers.
Held: Hoffman J said: ‘It was wrong . .
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
Cited – Memory Corporation v Sidhu (No 2) CA 3-Dec-1999
Where a party applied to court for an ex parte order, counsel had direct duties to the court, and also the supporting legal team and clients had continuing and overlapping duties. There was little to be gained by trying to analyze these things too . .
Cited – In re DPR Futures Ltd 1989
A liquidator’s cross-undertaking in damages may be limited to the net proceeds of the liquidation where he has no significant assets under his control apart from the unsatisfied judgment debt. . .
Cited – Mercantile Group (Europe) Ag v Aiyela and Others CA 4-Aug-1993
Interlocutory injunctions including Mareva procedures and orders are available to support the enforcement of a judgment. The purpose of such a jurisdiction is so that the court can ‘ensure the effective enforcement of its orders’. A court may still . .
Cited – TSB Private Bank International SA v Chabra ChD 1992
Asset freezing orders may be made against persons in relation to whom the claimant asserts no cause of action and seeks no money judgment, but in relation to whom there is an arguable case that assets held in their name or under their control are in . .
Cited – Lockley v National Blood Transfusion Service CA 1992
There was an interlocutory dispute over the granting of an extension of time for service of the defence. The legally aided plaintiff challenged the costs orders made by the district registrar and the judge. Each ordered that the costs be the . .
Cited – Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson (A Firm) CA 12-Jun-2002
The court was asked as to when it is appropriate to order costs on an indemnity basis. Waller LJ said: ‘The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the . .
Cited – Brink’s Mat Ltd v Elcombe CA 1988
An interim injunction had been obtained but on a flawed basis. A more limited injunction was now sought.
Held: Balcombe LJ set out the principles to be applied: ‘The rule that an ex parte injunction will be discharged if it was obtained . .
Cited – Behbehani v Salem CA 1989
It was undesirable to apply hard and fast rules when considering the replacement of an interim injunction obtained wrongfully (even if the nondisclosure was based on legal advice) by a full injunction. Woolf LJ said however that: ‘In deciding in a . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 09 September 2022; Ref: scu.260072