Bench Warrants
Another means of enforcing a Freezing Order are by way of Bench Warrants. The purpose of these are to secure a Respondent’s attendance at Court. Whilst rarely used, they can be helpful in certain circumstances, especially where a Respondent has failed to comply with a passport order or disclosure order. If a Bench Warrant has been issued, a Respondent may be arrested and held in custody until the hearing.
Other Remedies to consider when enforcing a Freezing Order
It is important that all relevant parties are fully aware of the existence of the Freezing Order and the potential consequences of assisting a breach.
If an Applicant has concerns as regards the disposal of property or assets, they can ensure further compliance by service of the Freezing Order on third parties (including associates, solicitors or even buyers of goods). Upon notice of the Freezing Order, that party may be subject to the Penal Notice and will be likewise deterred from assisting any disposal of assets – for example in the case of a buyer buying a property from the Respondent, if s/he receives notice of the Freezing Order before completion then they will not be protected as a result of an “arm’s length transaction”, as they are now aware that the purpose of the transaction is to deprive the Applicant of potential recoveries in breach of an Order of Court.
Alternatively, the Applicant could seek third party disclosure of information relevant to its investigation where the Respondent has not fully cooperated.
In the case of property assets, it is often the case that upon obtaining a Freezing Order this will be registered at the Land Registry and thereafter they will receive notice of any attempt to dispose of or transfer the title.
Enforcement outside England & Wales
The Court’s attitude
Courts are mindful of the risk of oppression on a Respondent where a Freezing Order applies overseas as well as domestically. There is a danger of the Respondent having to deal with a multitude of different applications in different jurisdictions.
As such, Freezing Orders can only be enforced overseas with the Court’s permission and furthermore, are not binding on third parties outside the jurisdiction until the Order has been registered, recognised and enforced in the local Court.
In deciding whether to grant permission, the Court will consider all relevant circumstances in the case and weigh up the benefit to the Applicant as against the cost and inconvenience to the Respondent of having to defend proceedings in different jurisdictions.
Worldwide Freezing Orders
Commonly, if an Applicant is seeking a Worldwide Freezing Order, the Court will consider whether to grant permission to enforce the terms of the Order at the initial hearing or on the return date rather than seeking to deal with the matter at a later date as part of a separate application.
However, if there is not sufficient time to consider the implications of the enforcement of a Worldwide Freezing Order at the time the the application is made, then the Applicant can return to Court at a later date to seek an Order from the Court with regard to the enforcement of a Worldwide Freezing Order.
Alternatives to enforcing a Freezing Order abroad
There are alternatives to making such an application and these include for example
- Whether it is possible to commence primary proceedings in a different jurisdiction; or
- Whether to seek separate freezing orders in a number of jurisdictions rather than simply deal with it on the basis of having a single worldwide Freezing Order granted in the English courts.
Whilst a coordinated approach with separate applications in different jurisdictions may add considerably to the initial expense of the proceedings, in the long run it may be a more viable and cheaper option than simply relying upon a Worldwide Freezing Order granted in England Wales and then seeking to enforce that Order outside the jurisdiction (which, dependant on the territory, may be very expensive on its own).
Should you require any further assistance at all in this area of the law, please contact one of our fraud specialists on 020 7841 0390 and we will be happy to have a free consultation with you.
