Monday, 18 May 2015

The Documents Required In Order To Obtain A Freezing Injunction

There are a number of documents which will need to be completed prior to attending Court to obtain a Freezing Injunction.  These are as follows:-
  1. An Application Notice. This is a document which will be prepared by the Applicant’s legal advisers and simply sets out the name and address of the Applicant and Respondent, the nature of the Application sought by the Applicant and confirms the basis upon which evidence is adduced.  
  2. A draft of the Freezing Order. This is a very important document as it sets out the terms of the Order sought by the Applicant from the Court. Commonly, these follow a standard form of wording, although they are often amended to suit the particular circumstances of an Applicant’s case. For more information relating to the content of a standard Freezing Order and possible variations, please see our other booklets in this series.
Often, the draft Freezing Order will be drafted by the Applicant’s legal advisors in conjunction with the barrister retained by the Applicant to attend Court and seek the Order.  
       3. In addition to the Freezing Order itself, Applicants often apply for what are                                   called Ancillary Orders, which are essentially various additional orders which can be                   requested from the Court at the time the Freezing Order is  sought and, if granted, will                 also be binding on the Respondent.   They often exist to ensure the Freezing                                 Order can be effective.  Whilst these are often varied, they can include the following:-
    • An Order for cross-examination of the Respondent about the nature, location and / or value of his assets;
    • An Order that the Respondent delivery up his passport;
    • An Order that a Receiver be appointed over the Respondent’s company;
    • An Order for immediate delivery up of assets or a payment into court;
    • An Order that the Respondent’s bank and / or any other financial institution be authorised to disclose information to the Applicant;
    • An Order for a Search Order;
    • An Order requiring the disclosure of the identity of the third party funder;
    • An Order that any party who is holding assets / documents on behalf of the Respondent be prevented from dealing with and / or disposing of the same.
It is vital when considering making an application for a Freezing Order that careful thought is given to what further orders an Applicant may wish the Court to make in order to fully protect its position.  Failure to do so can result in the Applicant not putting itself in the strongest position possible at the outset of the proceedings and it is a waste of time and legal costs if the Freezing Order is obtained but is ineffective.
In the circumstances it is vital that specialist legal advice is taken as to the nature and extent of any Ancillary Orders which may be sought.  It is often a combination of the standard form of Freezing Order and the appropriate Ancillary Orders which make it such a powerful litigation weapon at the disposal of an Applicant.
Affidavit Evidence explained
Any application made for a Freezing Order must be supported by written Affidavit evidence (essentially a form of witness statement).  This is evidence the Applicant must swear on oath as being true and is done so in support of the application.  
An Affidavit is a written statement made by a party which is sworn by the relevant individual on oath as being true and correct to the best of that person’s knowledge and belief. In the event that it can be shown that the Affidavit is incorrect and that the individual was either seeking to deceive the Court and/or was reckless as to the information given then it is possible that the relevant individual swearing the Affidavit may be held to be in Contempt of Court, and therefore potentially subject to imprisonment and/or a fine.
It is absolutely essential that the Affidavit is drafted carefully and in sufficient detail to support the application for a Freezing Order.  If it is not, then the application is highly likely to fail.