High Court orders Claimant to join request for Luxembourg freezing order to be varied to give effect to terms of UK freezing order

Facts of the Case

• In July 2021, a worldwide freezing order was granted in the UK (“WFO”) covering the assets of the defendant (“D”) up to a value of approximately £5.5 million. The WFO contained the usual caveats expressly permitting the use of funds for D’s living costs and legal expenses.
• A freezing order was also granted in Luxembourg (“LFO”) in the same month, which applied to D's bank accounts and assets in Luxembourg. The LFO did not include exceptions in respect of D’s living costs and legal expenses.
• D applied to the English High Court for an order that the claimants (“Cs”) should join him in requesting the variation of the LFO to allow D access to funds to pay his living costs and legal expenses (as permitted under the WFO). D submitted that as his bank accounts in Luxembourg represented most of his assets, the exception found in the WFO was useless, unless it was mirrored in the LFO.
• The Cs submitted that D's application should be refused unless he could satisfy a "burden of persuasion" and demonstrate that he did not have any additional assets, outside of Luxembourg, which he could use to pay his living costs and legal expenses (which the Cs suspected he did), relying on Tidewater Marine v Phoenixtide Offshore [2015] EWHC 2748 (Comm).

The Decision

• The High Court (Mr Nicholas Thompsell, sitting as a Deputy Judge of the High Court) granted the relief sought by D, and ordered C to join D in requesting the variation of the LFO to enable D to use his Luxembourg funds to pay his living costs and legal expenses.
• The Court found that the D did not have to satisfy a “burden of persuasion” in relation to his assets outside of Luxembourg, since he was not seeking a variation of the WFO, but rather to ensure that the intent of the WFO was not subverted by the LFO (Tidewater Marine v Phoenixtide Offshore distinguished). The correct approach was therefore for the Court to consider what was just and convenient within the test laid down in s.37(1) of the Senior Courts Act 1981, having regard to the overriding objective.

Analysis & Practical Advice

• In addition to the above-mentioned point of law, the judgment is of interest because of the approach the Deputy Judge took when applying the “just and convenient” test. In particular that, despite the Deputy Judge considering the Cs had “legitimate” concerns as to the availability to D of other assets beyond the WFO (even though the Cs failed to serve evidence going to key elements of such concerns), these did not outweigh granting the application given:
  • these concerns could be dealt with by way of orders for further information;
  • even if the Cs concerns were well founded, there was no great potential for damage to C where (i) D’s assets were already subject to the WFO and (ii) in view of the likely value of the assets in the context of the value of the claim and of other assets which remained subject to the WFO; and
  • the risk that if the application were not granted, (i) the D would be greatly hampered in preparing his case unless he had access to his Luxembourg funds and (ii) the matter not being capable of proceeding to trial in accordance with the timetable set down by the court because of further satellite litigation.