The Asset Recovery Agency obtained a without notice freezing order over the defendant’s house, alleging it had been purchased with proceeds of crime. In earlier proceedings involving the CPS, a judge had rejected such allegations and found the defendant to be the beneficial owner of the property. The defendant argued that the freezing order should be discharged as those allegations had been rejected in the earlier proceedings and to raise them again was an abuse of process. Further, the witness statement used to support the application had contained material misrepresentations and failed to disclose relevant evidence.

The court held that the CPS and the Agency were distinct bodies. The earlier proceedings had related to issues of title and had made no formal findings as to the source of the money used to acquire the property, which was what the current proceedings related to. On a broad, merits-based evaluation of all the circumstances, the agency’s claim was not an abuse of process. The witness statement had been misleading and should have referred to the earlier proceedings. However, the non-disclosure and innocent misrepresentation were not serious and so would not necessarily lead to the discharge of an order obtained without notice. The defendant had suffered no hardship and if the order was discharged, he would be free to dispose of the property. The injunction would remain in place.

Issues of public policy appear to have been at the forefront of this decision. Would a non-governmental litigant have received such a sympathetic hearing from the court when failing to make full disclosure of such matters on a without notice application? Possibly not.

Director of the Assets Recovery Agency v Kean