In an asset freezing order, where the defendant seeks leave to discharge liabilities, the nature of the plaintiff’s interest makes a difference. The court distinguished between cases where the plaintiff has a proprietary claim in the frozen assets and where he does not.
Sir Thomas Bingham MR said: ‘In the Mareva case, since the money is the defendant’s subject to his demonstrating that he has no other assets with which to fund the litigation, the ordinary rule is that he should have resort to the frozen funds in order to finance his defence. In the proprietary case, however, the judgment is a more difficult one because in the plaintiff’s contention the money on which the defendant wishes to rely to finance his litigation is not the defendant’s money at all but represents money which is held on trust for the plaintiff. That, of course, gives rise to an obvious risk of injustice if the plaintiff, successful at the end of the day, finds that his own money has been used to finance an unsuccessful defence. As these authorities make plain, a careful and anxious judgment has to be made in a case where a proprietary claim is advanced by the plaintiff as to whether the injustice of permitting the use of the funds by the defendant is out-weighed by the possible injustice to the defendant if he is denied the opportunity of advancing what may of course turn out to be a successful defence.’
Sir Thomas Bingham MR
Unreported, 23 June 1993, [1993] Lexis Citation 1664
England and Wales
Cited by:
See Also – Sundt Wrigley and Co Limited; Euro Canadian International Fund Limited v Wrigley; Bawt Limited; Atlantic Investments Limited v Sundt and Beaumont CA 31-Jul-1997
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See Also – Sundt Wrigley and Co Limited v Wrigley and others CA 19-Feb-1998
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See Also – Sundt Wrigley and Co Limited v Wrigley and others CA 19-Feb-1998
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Cited – Halifax Plc v Chandler CA 13-Nov-2001
The claimant had sought payment of a substantial shortfall debt from the defendant after repossessing and selling the defendant’s home. It compromised that debt, and was paid, but now sought to re-open the compromise on the basis of an alleged . .
Cited – XX and Others v YY and Others ChD 2-Jul-2021
The first defendant applies for an order that the claimants are not entitled to pursue legal action against his lawyers in respect of funds over which the claimants claim a proprietary interest and paid to the first defendant’s lawyers as legal fees . .
Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.241552