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Procedural guide—application for a freezing order—family proceedings Where there are concerns that a party intends to dispose of assets in a way that will defeat a claim for financial provision, or has already done so, immediate action may have to be taken to secure the assets. Freezing orders (historically known as Mareva injunctions) are an interim remedy and may be made under Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 20 or under the inherent jurisdiction. An application to restrain future dealings is most commonly made under section 37 of the Matrimonial Causes Act 1973 (MCA 1973) or Schedule 5 Part 14, para 74(2) of the Civil Partnership Act 2004 (CPA 2004). The purpose is to prevent a party removing assets located in England and Wales, or dealing with assets wherever they are located. The applicant has to show that there is a good arguable case against the respondent and a real risk that a judgment will go unsatisfied because of the disposal by the respondent, or that refusal...
Making an application for a freezing injunction—checklist Introduction to freezing injunctions and scope of this checklist A freezing injunction (or freezing order) is an interim injunction which restrains the respondent from dealing with or removing its assets from the relevant jurisdiction, being England and Wales, or wherever else they may be located in the world in the case of a worldwide freezing order (WFO). The overriding purpose of the court granting a freezing injunction is to ensure that the respondent’s assets are preserved so that in the event that the applicant obtains judgment against the respondent there are assets available for the applicant to recover and enforce against if necessary. This Checklist sets out how to make an application for a freezing injunction when claims are anticipated or ongoing in a corporate or personal insolvency context. Given that the particular circumstances of each case must be considered, this Checklist does not purport to be exhaustive, but to provide an overview of the key points to be considered at each stage...
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Setting aside default judgment—mandatory grounds (CPR 13.2) If default judgment is wrongly entered against a defendant the court must set that judgment aside. CPR 13.2 sets out mandatory grounds for setting aside a default judgment—if these grounds are present the court has no discretion and must set aside the default judgment regardless of the merits of any proposed defence. This Practice Note explains when the court is bound to set aside a default judgment and addresses common arguments which defendants put forward to say that a default judgment must be set aside on mandatory grounds. For guidance on the alternative bases upon which a court may, in its discretion, set aside default judgment, see Practice Note: Setting aside default judgment—discretionary grounds (CPR 13.3). For guidance on the procedure for applying to set aside default judgment, see Practice Note: Setting aside default judgment—making the application. For guidance on what is a default judgment, see Practice Note: Obtaining default judgment—general principles. What are the mandatory grounds for setting aside default...
Financial relief after overseas divorce—procedure This Practice Note sets out the procedure on an application for permission to issue an application for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984 (MFPA 1984) or Schedule 7 to the Civil Partnership Act 2004 (CPA 2004) following an overseas divorce or dissolution of civil partnership. It also considers the procedural steps following the issue of a substantive application, the allocation of proceedings, requirements for permission (leave), setting aside a grant of permission and setting aside and preventing dispositions. See also Practice Notes: Financial relief after overseas divorce—jurisdiction and legislative provisions and Financial relief after overseas divorce—court’s approach and case law. Jurisdiction and allocation The marriage or civil partnership that has ended by a foreign decree/order must be recognised in this jurisdiction as a valid marriage/civil partnership or at least a void marriage/civil partnership. See also Practice Notes: Recognition of overseas divorce or dissolution of civil partnership and Financial relief after overseas divorce—jurisdiction and legislative provisions. The jurisdictional...
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Affidavit in opposition to the continuation of a freezing injunction granted without notice Filed on behalf of the Respondent/Defendant [insert initials and surname of deponent] Number of affidavit: [insert the number of the affidavit in relation to that deponent eg first] Exhibits: [insert identifying initials and number of each exhibit referred to] Date: [insert date sworn or affirmed] Claim No. [insert claim number] IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES OR IN [insert location]] [Specify division] [Specify specialist court] [Insert location] DISTRICT REGISTRY Between: [insert name] Applicant/Claimant and [insert name] Respondent/Defendant _______________________________________ [insert number of affidavit, eg FIRST] AFFIDAVIT of [insert full name of deponent] [On behalf of the Respondent/Defendant] _______________________________________ I, [insert full name of deponent], [[insert job title] at [insert name of employer], of [insert work address] OR of [insert residential address]], [STATE ON oath OR do solemnly and sincerely affirm]: 1 Preliminaries 1.1 [I am the Defendant in these...
Affidavit in support of a freezing injunction Filed on behalf of the Applicant/[Claimant OR intended Claimant] [insert initials and surname of deponent] Number of affidavit: [insert the number of the affidavit in relation to that deponent eg first] Exhibits: [insert identifying initials and number of each exhibit referred to] Date: [insert date sworn or affirmed] Claim No. [insert claim number if proceedings have been issued] IN THE HIGH COURT OF JUSTICE [BUSINESS AND PROPERTY COURTS [OF ENGLAND AND WALES OR IN [insert location]] [Specify division] [Specify specialist court] [Insert location] DISTRICT REGISTRY [IN THE PROPOSED MATTER] Between: [insert name] Applicant/[Claimant OR Intended Claimant] and [insert name] Respondent/[Defendant OR Intended Defendant] _______________________________________ [insert number of affidavit, eg FIRST] AFFIDAVIT of [insert full name of deponent] On behalf of the APPLICANT/[CLAIMANT OR INTENDED CLAIMANT] _______________________________________ I, [insert full name of deponent], [[insert job title] at [insert name of employer], of [insert work address] OR of [insert residential address]], [STATE ON oath...
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Is permission of the court required to serve proceedings under Part II of the Landlord and Tenant Act 1954 on a company in Jersey? The general rule is that documents should be served within the jurisdiction of England and Wales (CPR 6.6). The first consideration should therefore be whether the intended defendant in the proceedings has a solicitor in England and Wales who has authority to accept service of the proceedings on the defendant’s behalf. If so, confirmation of this authority in writing from the defendant or its solicitors will be sufficient (CPR 6.7). Alternatively, if the defendant company has any place of business or carries on its activities within England and Wales, the Claim Form may be served at that address (CPR 6.9(2)). If it is not possible to serve in the jurisdiction then permission of the court will be required unless one of the factors in CPR 6.33 are met. The provisions in CPR 6.33 do not apply in this case as Jersey is...
An individual has given an undertaking to the court not to dissipate his assets. He intends to purchase a new house in joint names with his wife, to be funded through selling his own house and through funds which are the subject of the litigation. Could this be considered a dissipation of his assets? Is there guidance on what in particular constitutes dissipation? For the purposes of this Q&A, we have focussed on the issue of dissipation of assets in the context of freezing orders but we have also considered dissipation in the context of civil recovery proceedings and restraint orders. Freezing orders/injunctions The standard-form freezing order annexed to CPR PD 25A and the alternative version of the standard-form found in Appendix 5 of the Admiralty and Commercial Courts Guide contain restrictions on the respondent’s ability to dissipate his assets. The standard-form freezing order contains a prohibition on the respondent ‘removing… or in any way disposing of, dealing with or diminishing the value of any of...
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This week's edition of Banking and Finance weekly highlights includes: (1) DBT publish second progress report on Economic Crime and Corporate Transparency Act 2023 implementation; (2) IFRS Foundation publishes jurisdictional profiles to document adoption progress of ISSB Standards; and (3) ISDA launches pre-adherence for new digital notices platform.
Dispute Resolution analysis: Mr Justice Henshaw, sitting in the Commercial Court, confirmed that the court cannot compel an applicant to provide additional fortification of its undertaking in damages (also known as a cross-undertaking) after a freezing injunction has been discharged. It must be sought while the injunction is still in force. Undertakings and fortification are standard features of freezing injunctions and are the ‘price’ a claimant chooses to pay in return for the grant of an injunction. Imposing additional fortification retrospectively would deprive the applicant of the opportunity of considering whether to assume that burden as the price of obtaining the freezing injunction. An alternative attempt to invoke CPR 3.1(5) to obtain fortification post-discharge of an injunction will also fail. The judge held that CPR 3.1(5) cannot override common law rules on undertakings in damages and is limited to procedural defaults relating to the CPR, Practice Directions, or pre-action protocols. Written by Alexandra Prato, associate at RPC and Kylie Tang, trainee solicitor at RPC.
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