The maximum sum claimed by the Applicant is excessive
In all Freezing Orders, a Respondent’s assets are frozen up to a certain specified limit. This limit normally equates to the quantum of the losses which the Applicant says it has suffered as a result of the Respondent’s actions. However, it is open to a Respondent to apply to reduce the maximum sum if it can be shown that the Applicant has not given a realistic value of the claim, for example by not taking into account any counter claims that might be available to a Respondent.
Variation of any ancillary orders
When granting a Freezing Order, the Court will ordinarily consider making any additional orders that the Applicant may seek – these are commonly known as Ancillary Orders. Such Orders often relate to, for example, disclosure of documents and / or provision of information about assets, details of which must be provided to the Applicant sworn as true and correct in the form of an Affidavit. It is often the case that the deadlines in the Court Order are impossible to meet, due to the volume of documentation to be disclosed, the fact that it may relate to information held in different jurisdictions or, for example, that the documentation is in the possession, custody or control of third parties and may take some time to recover.
In such circumstances, a Respondent needs to explain why a particular deadline cannot be met and provide an alternate deadline within a reasonable time. Ideally, if it is open to a Respondent to do so, he should provide partial disclosure of documentation whilst making every effort to comply with full disclosure by any agreed extended deadline.
A Respondent may also wish to vary the terms of the order on the basis that disclosure of documents or information will not be given on the grounds of privilege against self-incrimination. For more details regarding the privilege against self-incrimination, please see our booklet in this series dealing with this particular aspect.
Other common terms which Respondents seek to vary include:
(i) Varying the terms of a Passport Order;
(ii) Requiring the Respondents to deliver up his passport and to not leave jurisdiction;
(iv) The appointment of a Receiver which could cause damage to his existing business.