The procedure for applying to have a Freezing Order discharged is as follows
If a Respondent wants to apply to discharge a Freezing Order, this is done by way of the following procedure:
(i) Drafting an Application Notice.
(ii) Drafting a detailed Affidavit setting out specifically the grounds upon which the Respondent seeks to rely on in terms of the proposed discharge of the Freezing Order.
(iii) That Application Notice will need to be issued at Court and a date will be given by the Court at which the Application will be heard. It is important when considering the discharge application to ensure that the time estimate is appropriate, as this will ensure that the Respondent obtains sufficient time at Court to have the application heard. Bearing in mind it is likely that the Applicant, when served with an application to discharge the Freezing Order, may itself serve evidence in response and as such, sufficient time must be set aside by the Court to hear the parties’ representations. Otherwise, the Court may be unwilling to deal with the application in too short a time frame and adjourn the hearing for another date, which could be weeks away (with the Freezing Order continuing in the meantime).
(iv) The application and evidence (including documents to be exhibited to the evidence) will then need to be served on the other side. This will undoubtedly lead to further correspondence being exchanged. This will include service on you/your solicitors of their evidence in answer to your application.
As part of the Application to discharge a Freezing Order, the services of a Barrister/Counsel will be required to represent you at the hearing and advise prior to the hearing on strategic matters and additionally any new issues raised by the other side’s evidence in answer. Your solicitors will need to draft a detailed Brief outlining all matters and enclosing all documents to bring Counsel up to speed to assist him/her in their preparations.
(vi) Counsel will prepare what is called a Skeleton Argument which will need to be filed at Court, commonly the day before the hearing. A Skeleton Argument is essentially a document prepared by Counsel setting out both the factual and legal aspects of the Application and it is provided for the benefit of the Judge hearing the Application to quickly get up to speed with the documentation which has been served. It is vitally important that the Skeleton Argument is prepared properly, as a well prepared Skeleton Argument will ensure that a Judge is brought fully up to speed prior to the application being heard.
Timings of the Application to Discharge a Freezing Order
The Application is ordinarily made either:
(i) Prior to the Return Date.
The Return Date is the date which the Court will set following the granting of a Without Notice Freezing Order, at which both parties will re-attend Court. This is commonly 7-14 days after the granting of the Without Notice Freezing Order and is notified to the Respondent. If the Respondent has sufficient time to prepare a detailed Affidavit seeking to discharge the terms of the Freezing Order between service on it of the original Freezing Order and the Return Date, then the Return Date is the sensible time to have any discharge application heard. If however, further time is needed after service of the Freezing Order, it is possible, by consent of both parties, to agree an extension of the Return Date to enable the Respondent to prepare the Affidavit evidence required as part of the discharge application. This will also enable the parties to list the matter for sufficient time to have that application heard at the Return Date.
(ii) After the Return Date Alternatively, even after the Return Date, the Respondent can at any time make an application to discharge the Freezing Order if any of the above grounds arise, for example, it has become clear that the Applicant has not provided full and frank disclosure.
Other considerations when deciding whether to discharge a Freezing Order
If a Respondent wishes to set-aside a Freezing Order which has been obtained Without Notice, the right route is that he must apply to the Judge and not, for example, attempt to appeal to the Court of Appeal without having first been to the Court in the first instance. The application must be made promptly if at all possible. Even if you do not agree with the evidence in support of, or the existence of, a Freezing Order, despite any protests of innocence you may have it is vital that the correct procedure is adopted. Please remember that any breach of a Freezing Order, no matter the reliability of the grounds it was obtained on, is Contempt of Court and could lead to committal to prison.
