The procedure to vary the terms of a Freezing Order
If a Respondent wants to apply to vary a Freezing Order, this is done by way of the following:
1. Drafting an Application Notice.
2. Drafting a detailed Affidavit setting out specifically the grounds upon which the Respondent seeks to rely upon in terms of the proposed variation of the Freezing Order including the reasons for the proposed amended terms.
3. The Application Notice will need to be issued at Court and a date will be provided to all parties by the Court at which the Application will be heard. It is important when considering the extent of the variation to consider the time estimate appropriate, as this will ensure that the Respondent obtains sufficient time at Court to have the variation application heard. Bearing in mind it is likely that the Applicant, when served with an application to vary the terms of a Freezing Order, may itself serve evidence in response and as such, sufficient time must be set aside by the Court to hear both of the parties’ representations.
4. As part of the Application, a Respondent will require the services of a Barrister/Counsel to represent it at the hearing and prior to the hearing. Counsel will prepare what is called a Skeleton Argument which will need to be filed at Court, commonly the day before the hearing. The Applicant’s solicitors will need to select an appropriate barrister with the appropriate expertise, sufficient experience and who is able to work within the Applicant’s financial constraints. The solicitors will have to draft a comprehensive Brief/Instructions bringing the barrister up-to-speed on all background matters and providing copies of all statements made in the proceedings and any other documents which may be relevant to the barrister’s role. The barrister is generally referred to as “Counsel”.
5. A Skeleton Argument is 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 him/her 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 be critical to the extent to which a Judge is brought fully up to speed prior to the application being heard.
Timings of the Application to Vary a Freezing Order
The Application is ordinarily made either:
1. 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. If the Respondent has sufficient time to prepare a detailed Affidavit seeking to vary 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 variation application heard.
If however, further time is needed after service of the Freezing Order, it is possible, by consent, for an extension of the Return Date to be agreed between parties to enable the Respondent to prepare the Affidavit evidence required as part of the variation application. This will also enable the parties to list the matter for sufficient time to have that application to vary heard at the Return Date.
2. After the Return Date
Alternatively, even after the Return Date, the Respondent can at any time make an application to vary the terms of a Freezing Order if any of the above grounds arise, for example if the Respondent is unable to pay living, legal or business expenses pursuant to the terms of the original Freezing Order. If this matter cannot be dealt with by consent with the Applicant, then the Respondent is left with no choice but to make a formal application to Court to have the underlying Freezing Order amended.
Other examples leading to an application to vary may include,
Where a Respondent is subject to a Freezing Order but is unclear as to whether a payment from a business account would for any reason be in breach of the terms of a Freezing Order. On occasion, clarity is sought from the Courts on this particular point to avoid a Respondent being in breach of the Freezing Order accidentally and in potential contempt of Court.
Where the Respondents’ assets, for example his family home, are subject to the Freezing Order, but in order to afford or pay his legal representatives the Respondent either needs to sell his property and/or give a Charge in favour of his legal advisors over the property. A variation to the Freezing Order would therefore be required so that the Respondent does not fall foul of the requirements not to deal with or diminish his assets at Court under the terms of the Freezing Order.
Where the Respondent has been loaned money by a family member to pay legal expenses and the Respondent then needs to repay those loans (if substantiated) to the family member pursuant to the terms of the Loan Agreement from the assets which have been “frozen” by the Freezing Order. Again, unless this matter can be dealt with by consent, a formal application will need to be made to the Court for a variation of the underlying Freezing Order.
Other considerations to take in to account when varying 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.
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.