In this series of posts, the person or company seeking the Freezing Order is referred to as the Applicant and the person or company subject to the Freezing Order is referred to as the Respondent.
Even if there are no grounds to have a Freezing Order discharged (something discussed in other forthcoming posts in this series), there may be legitimate reasons to vary the terms of the Freezing Order. A variation can either be agreed by consent between the parties to the litigation or, alternatively in the event that the Applicant’s solicitors refuse to agree the variation by consent, a Respondent can do so by making an application to court.
Common grounds for seeking the variation of the terms of a Freezing Order include the following:
The Order is oppressive and the Respondent is unable to pay living, legal or business expenses.
A Respondent is always entitled to have sufficient money to pay reasonable living costs and legal or business expenses. It is common for a Respondent to seek an increase in the allowance given in the Order for either living expenses or legal costs.
Commonly, a sum of £500 a week is provided for in the terms of a Freezing Order in respect of living expenses. However, the Respondent will need to assess whether this amount is appropriate for his/her reasonable living expenses and whether or not an increase should be sought. In order to seek a variation of the living allowances figure, it will be necessary to show what the Respondent’s normal expenditure is, by reference to bank statements and / or facility / loan documents etc. Of course, there may be a number of reasons why a Respondent would not want an Applicant having access to such information. However, it is not uncommon for the Respondent to have to provide full details of his/her financial position in accordance with the provision of information sections contained within the usual Freezing Order itself.
Furthermore, if the Freezing Order does not support a proprietary claim to the frozen assets (i.e. specifically targeting the assets - see our booklet titled “Freezing Orders –A Practical Guide” then the Court will normally allow a Respondent to use his assets for ordinary living expenses together with reasonable, legal and business expenses.
However, if the Applicant claims a proprietary right to the frozen assets (i.e. the Applicant claims the rights to a specific asset such as a house purchased with allegedly stolen money), the Court is unlikely to vary the terms of the Freezing Order unless the Respondent can show three things:
(i) There are no other assets available at all;
(ii) He has a good defence to the claim / or a reasonable prospect of success; or
(iii) He is entitled to the funds in question.
It is always sensible to consider all issues relating to an application to vary the term of a Freezing Order at an early stage. The Courts generally do not like it if a Respondent returns to Court more than once to seek to vary the terms of a Freezing Order.