Thursday, 7 May 2015

What must an Applicant show to obtain a Freezing Injunction? Part 1

It has a good or properly arguable case.
However, this is a relatively low threshold for the Applicant to get over. Recent judicial commentary states
“the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which a Judge believes to have a better than 50% chance of success.
It is not a requirement at the initial hearing that the Court has to form a provisional view that the Claimant will probably succeed at trial in its underlying substantive claim. However, the Court will take into account the apparent strengths and weaknesses of the case when deciding whether the Claimants case is sufficiently strong to reach the appropriate threshold. This will include assessing the apparent plausibility of statements in affidavits in support of the application. However, the test is not particularly an onerous one for the Claimant to pass.
If the Applicant is able to convince the Court of the merits at this first hearing (which was heard without notice to the Respondent) then an Interim Injunction may be granted and a further hearing listed which must then be notified to the Respondent.
The question of a good arguable case can sometimes become more important at the Return Date of an injunction when a full hearing takes place and at which the Respondent is also present. At that hearing the Court will determine whether the injunction should continue until trial of the claim itself or until any further Order in the substantive proceedingsBy that stage, it is likely that the Respondent will have adduced evidence in response to the Applicants original affidavits and the Court will consider these carefully. However, it is established case law that the return date must not become a trial in itself, even in circumstances where the Respondent is seeking to have the injunction discharged. Other commentary with regard to this particular requirement states that a Claimants case must not be so strong as to warrant Summary Judgement under CPR 24.