Thursday, 21 May 2015

Service Of A Freezing Order And Other Documents

The requirements explained 
If a Freezing Order is granted, the Applicant must ensure that every effort is made to effect proper service of all relevant documents on a Respondent.  Those documents need to be served as soon as possible and also personally on the Respondent. An Applicant’s solicitors will usually retain the services of a specialist process server to ensure service is carried out.
The process server will then need to produce an affidavit of service detailing the time, date and the manner of the service, together with exhibiting the documents he served on the Respondent.
An Applicant will need to serve the Respondent with the following documents:
  1. An original sealed copy of the Freezing Order made by the Court.
  2. A sealed copy of the Application Notice.
  3. A copy of the Affidavit in support of the application, together with any exhibits to that Affidavit.
  4. A full note of the hearing prepared by the Applicant’s solicitors.
  5. A sealed copy of the Application Notice for continuation of the Order and setting out the date by which the parties must return to Court for the next stage of the proceedings (“the Return Date”).
  6. An issued Claim Form and Particulars of Claim in respect of the substantive proceedings, if issued and not yet served.
In addition to the Respondent, the Applicant must serve a copy of the Freezing Injunction on the following parties:-
  1. Any other party named in the proceedings.
  2. Any third parties who may hold assets belonging to the Respondent, such as banks where accounts are held.  This is vital as it reduces the risk that the Respondent may seek to move monies out of the jurisdiction or beyond the Applicants reach.  If the bank is not on notice of the Injunction, then it cannot be criticised if monies are removed from a Respondent’s bank account prior to being put on notice.
Problems with Service – how to deal with this issue
If it is not possible to serve a Respondent promptly, then an Applicant should consider making an application to Court for an extension of time for service of the Order.  
Further, if personal service cannot be carried out (for example the Respondent cannot be located), then this can cause difficulties to an Applicant.  However, the Court can be satisfied of service if evidence is proved that the Respondent was notified of its terms by telephone, e-mail or otherwise.  If this is the case, then the Court may dispense with the requirement for personal service and make an Order for an alternative means of service, possibly by service of a Respondents legal advisors and/or on another third party.
The Return Date explained
If a Freezing Order has been made without notice to a Respondent, the Court will always order that a further hearing take place between the parties very shortly after the Order is made – this is what is known as the “Return Date”.  
Ordinarily, the Return Date is set 7 – 14 days from the granting of a Freezing Injunctionand provides an opportunity for the Respondent to appear at Court once they have been served with the various Court documentation.  It is open to the parties to seek an adjournment of the Return Date by consent, particularly in circumstances where a Respondent needs to prepare Affidavit evidence in response (and may require more time). This is particularly useful if the Respondent is thinking of challenging the Freezing Order or seeking to vary its terms. However, the Respondent should be aware that the Freezing Order will continue to apply until it has been discharged by the Court or other Order is made.
At the full hearing, a Respondent can do one of three things:-
  1. Seek to have the Freezing Order discharged.
  2. Seek to vary the terms of the Freezing Order.
  3. Agree to the continuation of the Freezing Order until trial or earlier Order in the underlying substantive proceedings.
For more information about varying or discharging Freezing Injunctions, please see our separate booklet on these subjects.