HomeFWJ TakeawayFraud and freezing ordersApplying for a freezing orderFreezing injunction – good arguable case

The requirement to have a good arguable case is central to demonstrate in order to obtain a freezing injunction. Failure to do it properly will mean the order won’t be made. Our superb team can help advise you on this important legal issue.

In order to obtain a freezing order, the applicant will have to demonstrate to the court that it has a “good arguable case”.

Threshold required by the court

The threshold for a good arguable case is relatively low for the applicant to get over. Recent judicial commentary states

“the right course is to adopt the test of a good arguable case, in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which a judge believes to have a better than 50% chance of success”.

How does the court deal with this at the first hearing?

It is not a requirement at the initial freezing injunction hearing that the court has to form a provisional view that the claimant will probably succeed at trial in its underlying substantive claim.

However, the court will take into account the apparent strengths and weaknesses of the case when deciding whether the claimant’s case is sufficiently strong to reach the appropriate threshold and grant a freezing injunction. This will include assessing the apparent plausibility of statements in affidavits in support of the application. However, the test is not particularly an onerous one for the claimant to pass.

If the applicant is able to convince the court of the merits at this first hearing (which was heard without notice to the respondent) then an interim injunction may be granted and a further hearing listed which must then be notified to the respondent.

Will the issue be looked at again at the return date hearing?

The question of a good arguable case can sometimes become more important at the return date of a freezing injunction when a full hearing takes place and at which the respondent is also present.

At that freezing injunction hearing, the court will decide whether the freezing injunction should continue until trial of the claim itself or until any further order in the substantive proceedings. By that stage, it is likely that the respondent will have adduced evidence in response to the applicant’s original affidavits and the court will consider these carefully.

However, it is established case law that the return date must not become a trial in itself, even in circumstances where the respondent is seeking to have the injunction discharged. Other commentary with regard to this particular requirement states that a claimant’s case must not be so strong as to warrant summary judgment under CPR 24.

Please contact one of our expert freezing injunction lawyers now for your friendly consultation. At Francis Wilks & Jones, we have all the freezing injunction experience required to handle any type of claim, including good arguable case issues.  Whatever your situation, do get in touch. 

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