07th Oct 2014
DELAY CAN BE FATAL TO A FREEZING INJUNCTION
Clive Freedman QC, instructed by Jack Rabinowicz of Teacher Stern LLP, successfully resisted an application to renew a freezing order. On 11 August 2014, Asplin J made a freezing order against the Defendant in the amount of £1.6 million, but Roth J on the adjourned return date decided not to renew the injunction. The primary reasons were that the Claimants were unable to establish a risk of dissipation of assets and serious and significant non-disclosure on the without notice hearing. He also expressed concerns about aspects of the case for damages for breach of contract, negligence and breach of fiduciary duty.
Mr Justice Roth considered the issue of delay highly relevant to the present case. There was evidence that in 2010 at latest, the Claimants were pressing a claim against the Defendant, yet proceedings were not issued until August 2014 when the without notice freezing order was obtained.
In previous cases, judges had held that delay was relevant because (a) it was telling about an absence of belief of a claimant in a risk of dissipation and (b) if there really was a risk of dissipation, the assets would have been dissipated during the period of delay.
Roth J articulated a variation on point (b), saying
“If Mr Goldberg was someone who had the intention or desire to spirit away or conceal his assets to avoid a judgment, he had ample opportunity to do so.”
This variation is the opposite of point (b). It is not that dissipation would have taken place during the delay: the fact that there was not dissipation despite the “ample opportunity” indicates that there is no real risk of dissipation. The Judge also found that the delay reflected a lack of belief of a real risk of dissipation.
Further, among a series of non-disclosure points, the Claimants had failed on the without notice application to appraise the Court of the arguments which would be expected by reference to the delay. The Judge ordered costs against the Claimants on the indemnity basis.
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