The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent amounting in all to US$4.4 billion, none of which had been satisfied. The bank appealed against a finding that the funds available under the loan agreements were not assets within the freezing orders and were therefore available to the defendant to do with as he wished.
Held: The bank’s appeal succeeded. The funds available under the loan agreements were assets brought within the order by the extended definition of assets in paragrapgh 5 of the freezing order. The flexibility principle applied by the Court of Appeal had no place in this context. Earlier case law did not reflect the way that such orders had become extended in scope over recent years, and in this case the wording used was sufficient,
Lord Neuberger, President, Lord Mance, Lord Kerr, Lord Clarke, Lord Hodge
[2015] UKSC 64, [2016] 1 All ER 608, [2015] 2 Lloyd’s Rep 546, [2015] 1 WLR 4754, [2016] 1 All ER (Comm) 97, UKSC 2013/0203
Bailii, Bailii Summary, SC, SC Summary
England and Wales
Citing:
At first instance – JSC BTA Bank v Ablyazov and Others ComC 4-Jul-2012
The bank had obtained a freezing order. The defendants had claimed four substantial loan agreements, but the Bank asserted that these were shams. The first defendant had been found guilty of contempt, and now seemed to have fled the country. . .
Appeal from – JSC BTA Bank v Ablyazov CA 25-Jul-2013
The claimant bank had an asset freezing order in place over the assets of the defendant. The defendant had in place loan facilities allowing him to draw down substantial amounts as chosen. The claimant appealed from refusal of a declaration that the . .
Cited – Mareva Compania Naviera SA v International Bulkcarriers SA CA 1-Feb-1975
An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets.
Held: The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: ‘A mandamus or an injunction may . .
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 – A v C (Note) ChD 1980
The plaintiffs said the first defendant had defrauded them of substantial sums, and implicated other defendants. They claimed against five defendants variously for conspiracy to defraud and deceit and for breach of warranty. They also sought to . .
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Cited – Mercedes Benz Ag v Leiduck PC 24-Jul-1995
Mareva relief is not available against a foreigner outside the UK in order to support a court action abroad. A Mareva injunction is not itself a substantive relief and so was not available to support foreign proceedings. A freezing order has to be . .
Cited – Camdex International Ltd v Bank of Zambia and Another CA 22-May-1996
Application by the defendant for leave to appeal and, should leave be granted, an appeal . .
Cited – Searose v Seatrain UK 1981
Third parties who are unconnected with a dispute but who incur expense in complying with an order may specifically be covered by a cross-undertaking as to their costs and otherwise. Robert Goff J said: ‘the banks in this country have received . .
Cited – Darashah v UFAC (UK) Ltd CA 1982
A Mareva order had been obtained. The order explicitly included goodwill as an asset of the company, but the defendant argued still that it was not covered as an asset for the injunction.
Held: The court rejected the assertion.
Lord . .
Cited – Federal Bank of the Middle East v Hadkinson and Others CA 16-Mar-2000
The Court had to decide whether an order in the standard form of freezing order was effective to cover assets which were held in the defendant’s name but which belonged beneficially to third parties.
Held: It did not. A Mareva injunction in . .
Cited – C Inc Plc v L and Another ComC 16-Mar-2001
The court was asked as to the scope of the court’s power to grant a freezing order over the assets of a person who is resident out of the jurisdiction and against whom no substantive claim had yet been brought by the Claimant. . .
Cited – Anglo Eastern Trust Ltd v Kermanshahgi ChD 2002
An asset freezing order restrains the defendent from dealing with his assets but does not prevent him from borrowing money, thereby increasing his overall indebtedness. . .
Cited – Cantor Index Ltd v Lister 2002
The court held that a defendant subject of an asset freezing order, who borrows money, does thereby increase his indebtedness but does not dispose of, deal with or diminish the value of his ‘assets’ within the meaning of the standard form of . .
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 – JSC BTA Bank v Kythreotis and Others CA 14-Dec-2010
The court was asked as to the construction about the meaning of the words ‘his assets’ as they appear in the standard form of freezing order set out in Appendix 5 to the current edition of the Commercial Court Guide. In short, that issue is whether . .
Cited – Templeton Insurance Ltd v Thomas and Another CA 5-Feb-2013
The court was asked whether goodwill was to be regarded as an asset in the context of an asset freezig order. A third party company was subject to such and they were said to have broken the order by the purchase at an undervalue of the company . .
Cited – Lakatamia Shipping Company Ltd v Su and Others CA 14-May-2014
The claimant had obtained a freezing order in standard form against the defendant company. The Director of the company had similar sole positions in three other companies. The claimant obtained a similar order against the assets of the other . .
Cited – JSC Mezhdunarodniy Promyshlenniy Bank and Another v Pugachev CA 27-Feb-2015
The defendant appealed form an order requiring disclosure of the assets of a discretionary trust. He was subject to an asset freezing order and a beneficiary of the trust. . .
Cited – Regina v Kohn CACD 1979
An overdraft facility was property which could be the subject of a charge of theft. In the context of the presentation of a cheque, improperly presented to a bank but which the bank pays, it was a theft of a chose in action by the person who . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 05 January 2022; Ref: scu.553628