USA v Abacha & Ors

Whether it is expedient to grant a freezing  injunction to aid a forfeiture claim in the US

Section 25 of the Civil Jurisdiction and Judgments Act 1982  gives the English courts the power to grant a freezing order  in aid of foreign proceedings. The issue in this case was  whether that included a forfeiture claim in the foreign  court (namely, in this case, a claim that certain assets were  derived from the proceeds of corrupt misappropriations  and were therefore liable to forfeiture under a US statute).

Field J rejected an argument that the freezing injunction  in question should not be continued because the US claim  was a criminal, not a civil, proceeding (as required by  section 25). The US claim did not involve the prosecution  or sentencing of any individual in a criminal court (the  “hallmarks” of criminal proceedings). Instead it was a claim  for the vesting in the US government of property used in, or  resulting from, certain crimes.

He also rejected an argument that it would not be expedient  to continue the freezing order because a judgment in the  US claim would not be enforceable in England in rem or  in personam (because the property to be forfeited, and the  person against whom the claim was made, were outside the  US). Although the US claim would not be enforceable here,  the application under section 25 was not an application to  enforce a foreign judgment. Instead, it was an application  to continue an order “designed to hold the ring until a  judgment in the US Claim can be lawfully enforced” (under  Part 5 of the Proceeds of Crime Act 2002 (External Requests  and Orders) Order 2005)).

It was therefore expedient to continue the freezing order to  aid the US claim: “Corruption, like other types of fraud, is a  global problem and it and its consequences are only going  to be dealt with effectively if there is co-operation and  assistance not only between the governments of states but  also between the courts of different national jurisdictions”.