If you are considering applying for a freezing injunction, it is vital to ensure your affidavits in support of the application are properly drafted. Failure to do so can have serious consequences. Our brilliant team can help.
Any application made for a freezing order must be supported by written evidence in the form of an affidavit (a type of witness statement) .
An affidavit is a written statement made by a party which is sworn by the relevant individual on oath as being true and correct to the best of that person’s knowledge and belief. If the Affidavit is later shown to be incorrect or the individual trying to deceive the court and /or was reckless as to the information given then it is possible that the relevant individual swearing the affidavit may be held to be in contempt of court. This could result in imprisonment or a fine.
It is absolutely essential that the affidavit is drafted carefully and in sufficient detail to support the application for a freezing injunction. If it is not, then the application is highly likely to fail.
What the affidavit should deal with
- the reasons for urgency. The court will need to be convinced that the matter is urgent and why, if the application is being made without any notice to the respondent, this is necessary;
- the respondent’s assets. The court will also require some information regarding the respondent’s assets, including evidence as to their nature and current location;
- evidence of the potential risk of dissipation by the respondent in the event that the freezing injunction is not granted;
- a good arguable case. The applicant will also have to show there is a good arguable case in the underlying substantive claim against the respondent. Ideally, the applicant will need to exhibit a draft claim form relating to the underlying claim (if not yet issued) so that the court can see that there is a claim to be litigated out against the respondent. The court may require the applicant to provide an undertaking that the claim form will be issued and served as soon as practicable possible;
- details of any defences available to the respondent. If relevant, the affidavit will have to outline (with as much detail as possible) any possible defences which the respondent may have including those of set-off, counterclaim or possible privilege against self- incrimination (which reflects the applicant’s duty of full and frank disclosure – see below);
- possible insolvency of the respondent. If the respondent is likely to go into some form of insolvency in the near future, this needs to be drawn to the court’s attention. If it is clear that insolvency is likely, the court may refuse to grant an injunction on the basis that it will provide no added protection to the applicant;
- prejudice of hardship to the applicant. The affidavit will need to cover the issue of any likely prejudice or hardship which the applicant may suffer if the freezing order is not granted;
- criminal convictions. If the applicant is subject to any criminal charge or conviction, this needs to be disclosed in the affidavit;
- financial standing of the applicant. In order to deal with the issue of undertaking in damages, the applicant will need to provide detailed evidence of its financial standing, often by exhibiting its latest audited / management accounts (and possibly also by providing copies of bank statements), particularly in light of the applicant’s obligation to provide an undertaking in damages should the application be unsuccessful;
- foreign law considerations. If the freezing order is sought on a worldwide basis, it might be that issues of foreign law in different jurisdictions also needs to be covered. The applicant may also need to consider the issue of seeking leave to serve the proceedings outside the jurisdiction of the court (i.e. outside England and Wales); and
- full and frank disclosure. In addition to the above, every applicant in these types of proceedings is under a duty to provide full and frank disclosure, meaning that it must disclose all relevant material to the court, either factual or legal and whether in favour of the applicant’s claim or not, which may have a bearing on the court’s decision to grant the order.
If you have a freezing injunction enquiry, we are the firm of lawyers to help you. We provide professional and cost effective advice. We do so on an immediate basis as we understand the critical timing issues involved with freezing injunction claims. Call now us now to speak to one of our expert lawyers.