Freeze!

A recap and summary of  J v H [2022] EWFC 133, which was a case involving the Husband’s (‘H’s) application for a freezing order.

The relevant background to this application is as follows:

1. The parties were engaged in financial proceedings following the end of their marriage,
2. On the 12^th of October 2022, H gave 1 hours’ notice that he intended to make an urgent application to restrain the Wife (‘W’) from dealing with her overseas assets,
3. Prior to this, H through his solicitors, wrote to W asking them to sign undertakings agreement not to dispose of any assets currently held in their name,
4. The application for a freezing order was adjourned until the 19^th of October 2022 and then again to the 25^th of October 2022 for determination by Mr Justice Peel.

Relevant legal framework

In short, a freezing order is an order which prevents a party disposing of or dealing with their assets.

UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] EWHC 1735 sets out the relevant principles and safeguards for an application of this nature:

i) The court has a general power to preserve specific tangible assets in specie where they are the subject matter of the claim. Such an order does not necessarily require application of all the freezing order principles and safeguards, although it is open to the court to impose them.

ii) For a freezing order in a sum of money which is capable of embracing all of the respondent’s assets up to the specified figure it is essential that all the principles and safeguards are scrupulously applied.

iii) Whether the application is made under the 1981 Act or the 1973 Act the applicant must show, by reference to clear evidence, an unjustified dealing with assets (which would include threats) by the respondent giving rise to the conclusion that there is a solid risk of dissipation of assets to the applicant’s prejudice. Such an unjustified dealing will normally give rise to the inference that it is done with the intention to defeat the applicant’s claim (and such an intention is presumed in the case of an application under the 1973 Act).

iv) The evidence in support of the application must depose to clear facts. The sources of information and belief must be clearly set out.

v) Where the application for a freezing order is made ex parte the applicant has to show that the matter is one of exceptional urgency. Short informal notice must be given to the respondent unless it is essential that he is not made aware of the application. No notice at all would only be justified where there is powerful evidence that the giving of any notice would likely lead the respondent to take steps to
defeat the purpose of the injunction, or where there is literally no time to give any notice before the order is required to prevent the threatened wrongful act. Cases where no notice at all can be justified are very rare indeed. The order of the court should record on its face the reason why it was satisfied that no or short notice was given.

vi) Where no notice, or short informal notice, is given the applicant is fixed with a high duty of candour. Breach of that duty will likely lead to a discharge of the order. The applicable principles on the re-grant of the order after discharge are set out in Arena Corporation v Schroeder at para 213.

vii) Where no notice, or short informal notice, is given the safeguards assume critical importance. The safeguards are set out in the standard examples for freezing and search orders. If an applicant seeks to dis-apply any safeguard the court must be made unambiguously aware of this and the departure must be clearly justified. The giving of an undertaking in damages, whether to the respondent or to an affected third party, is an almost invariable requirement; release of this must be clearly justified.

Analysis and conclusion

This application came about after W removed the sum of $18,000.00 from a joint account. W went on to explain the purpose of the withdrawal and that the funds would be returned forthwith.

Within correspondence before the application was made, W confirmed that she did not intend to take any action to deal with or dispose of her assets other than for personal and business purposes. H continued to make the application, initially only giving an hour of notice.

Mr Justice Peel concluded:

[19] Put simply, I am of the view that the evidential justification for H’s application is thin. There is little in terms of objective evidence to indicate a solid risk of dissipation of assets. Mere suspicion, or anxiety, on H’s part is not sufficient. I am not satisfied that there is any basis upon which to assert that W by her actions was and is seeking to defeat H’s financial claims.

[20] At para 52 of UL v BK, Mostyn J said this:

“Finally, I draw attention to the great concern of myself and other judges at the continued widespread abuse of the principles governing ex parte applications not only for freezing orders but also more generally. It is worth remembering not only that the ex parte procedure is intrinsically unfair but also, and very importantly, that a case which begins with an ex parte order is usually poisoned from that point onwards. The unilateral step taken at the beginning of case echoes down its history. Often the respondent is enraged by the step taken against him and looks to take counter-offensive measures. Every single subsequent step is coloured by that fateful first step. Costs tend to mount exponentially. And even after the lawyers close their files and render their final bills the personal relations of the spouses will likely remain forever soured”.

[21] Those words continue to ring true. True, the application was not made without notice, but with only 1 hours’ notice to W it was to all intents and purposes a unilateral step. There is no novel point of law in this case, nor are the facts themselves particularly notable, although the wealth is far beyond that of most people. But this case is a salutary reminder to practitioners, if reminder is needed, that the legal and procedural pre-requisites of a freezing order application, or s37 application, as set out in UL v BK must be complied with before the court will be willing to entertain granting such an order.

[22] I also take the view that the application was defective in two particular respects, although ultimately this has not influenced my decision on the substantive merits:

• • • The application was supported by a witness statement, yet PD20A para 3.1 of the Family Procedure Rules 2020 mandates that “Applications for search orders and freezing injunctions must be supported by affidavit evidence (emphasis added)”, in contra distinction to other forms of interim injunctions which must be supported by either a witness statement or the application notice provided it is verified by a statement of truth; and
    • The draft order put before Morgan J made no provision for W’s costs of living, the school fees for the parties’ child (which W had always paid) and W’s legal fees, all of which should have been included as standard exceptions to the full rigours of the proposed freezing order.

[23] The application is dismissed. Morgan J was, in my view, entirely correct to refuse to make the order at the first hearing, and the unsustainability of the application became even clearer when W subsequently produced her evidence. W has offered a form of wording to be incorporated by way of recital which (with some amendments by me) I reproduce as:

• • 1. “W states that she has no intention to withdraw funds from her investment portfolio.”
    2. “W states that she no intention to sell, mortgage, charge, or otherwise deal with the property.”
    3. “W agrees to give H 7 days’ notice in writing of any intention to (a) withdraw funds from her investment portfolio AND/OR (b) sell, mortgage, charge, or otherwise deal with the property.”
    4. “W considers that as a matter of law she is beneficially entitled to 100% of the property, and in any event expects and intends that the transfer of legal title into her sole name shall be registered as soon as practicable”.

I consider that her agreement to include these clauses in the preamble to my order is constructive and pragmatic

Mr Justice Peel made a costs order against H, which is not to be enforced until the conclusion of the financial remedy proceedings. This was with the view that the debt would likely be deducted from any final award.

Friendly reminder that this article is not to be viewed as legal advice, and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

 

Rachel Norgate

21^st March 2023