WHAT THE COURT REQUIRES TO GRANT A FREEZING INJUNCTION PART 1
In this series of posts, we look at what the court requires to grant a Freezing Injunction in England & Wales and consider the legal and evidential considerations in that process. In these posts, the person or company seeking the Freezing Injunction is referred to as the Applicant and the person or company subject to the injunction is referred to as the Respondent.
Introduction – the Court’s Approach
It is a rule of thumb that Courts will not grant Freezing Injunctions lightly. This is because they go against a fundamental principle that an individual should be able to deal freely with his or her own assets. Therefore, there are strict and onerous obligations on a party seeking to obtain an Order of this nature from the Court, particularly on a without notice basis.
Commonly, most Freezing Injunctions are sought without any prior notice to a Respondent (“without notice applications”) on the basis that the Applicant does not wish to notify and/or give the Respondent any advance warning of the proposed action in case the Respondent then takes steps to put any assets beyond the reach of the Applicant. However, in the absence of the Respondent being given the opportunity to make representations at the initial hearing, the evidential burden on the Applicant is very high. The Court has to be very satisfied that the Freezing Injunction is appropriate to grant and will look at the application very carefully.
The granting of a Freezing Injunction is entirely at the Court’s discretion. The Court will always consider whether it is just and convenient to grant a Freezing Order. Applications will be refused if the injustice and/or detriment that would be caused to a Respondent outweighs the benefit that is gained by the Applicant. Equally, the Court will take into consideration the Applicant’s conduct and how quickly they have acted in seeking an Order. Any delay in making the application will severely damage the chances of a successful application.