STEPS TO TAKE IF YOU HAVE BEEN SERVED WITH A FREEZING ORDER PART 3
Check carefully the dates by which certain obligations and/or requirements must be completed
Often, a standard form of Freezing Order will include certain dates by which specific actions must be undertaken. Commonly, these relate to disclosure of documents and also relate to production of an Affidavit (a form of witness statement) by which the person served must set out on oath details of his/her assets, either domestically or on a worldwide basis (up to defined limits).
It is vital that the person served fully understands the dates by which any actions must be taken and start preparing the relevant documentation / information as soon as possible following service. By doing so, that person has the best chance to comply with the terms of the Order and, for example, if it appears that for whatever reason someone is unable to meet one of the dates as set out, applies to court to vary the terms of the Order prior to the expiry of the particular date.
It must be remembered that if a person fails to comply with any terms of the FreezingOrder, the Applicant can make an application to Court for Contempt of Court which could lead to a fine or even imprisonment. Failure to comply without having made an application to Court for an extension of time can also lead to payment of the Applicant’s legal costs if they make an application for Contempt of Court and committal to prison.
It is therefore always better to deal with any issues in advance and if necessary go back to court to seek an extension of time for dealing with any matters if it is clear further time is required. It is not recommended that a Freezing Order is put aside for reading later, as the failure to read it immediately is not an excuse for failing to comply with the stated requirements.
Consider whether the Applicant’s undertaking in damages is sufficient
As part of granting without notice Freezing Orders, the Court will insist that the Applicant provides what is called a cross undertaking in damages. Essentially, this is a sum of money which the Applicant must either pay into Court as part of the granting of the Order or provide an undertaking to pay in circumstances where it is later shown that the Freezing Order should not have been granted and the Respondent has suffered damages as a result.
If it appears that the monetary sum offered by way of an undertaking is insufficient to cover any estimated likely damages a person / company may suffer as a result of the wrongful granting of a Freezing Order, that person can make an application to Court for the undertaking in damages to be increasedand/or fortified by the Applicant actually paying money into a court bank account which will then be held there until determination of the substantive claim.
Consider whether more time is needed to comply with the Order or require an adjournment of the full hearing
As set out above, it might be that the person served with the Freezing Order requires more time to comply with certain aspects of the Freezing Order. If that is the case, then that person should give careful thought as to the extent and amount of additional time required to comply with certain aspects of the Order.
These will need to be set out in an application notice supported by evidence in a written affidavit giving reasons why it is that further time is required. Any application must be made to the court prior to the expiry of the time period set out in the Freezing Order.For example documents maybe held outside the jurisdiction or alternatively it might take time to obtain information from banks or other third parties as ordered to do so by the Court.
Preparing for the Return Date in court.
In all without notice Orders, the Court will set a date (known as the Return Date) when both the Applicant and the Respondent will attend Court – generally 7 – 14 days after the making of the Freezing Order.
The purpose of that hearing is to enable a Respondent the right to reply to the application which he/she previously had no notice of at the time it was granted. At that hearing a Respondent can either fully contest the granting of the Freezing Order, seek to vary some or all of the terms of the Order or simply agree to a continuation of the Freezing Orderuntil trial or any earlier Order in the substantive proceedings.
In advance of the Return Date, the Respondent will commonly want to prepare
Affidavit evidence setting out its side of the events and also confirming compliance with the terms of the Freezing Order. This is particularly the case if the Respondent wants to contest the order in any way.
Commonly the Court will Order that the Return Date is either 7 or 14 days after the granting of the Freezing Order. It might be that the Respondent requires further time to prepare that evidence in which case we would recommend that the Respondent makes an application to adjourn the return date to enable him/her sufficient time to prepare all the relevant paperwork (the previous point refers).