Freezing injunctions aim to prevent defendants defeating monetary judgments made against them. Essentially, freezing injunctions stop a defendant from disposing of his property pending conclusion of a claimant's trial against him, or pending completion of judgment enforcement. Such orders are usually limited to cover only the defendant's property within the jurisdiction and are limited in value to that expected, or ordered, in the judgment.
Freezing injunctions may be applied for at any stage of an action, but are commonly applied for before commencement of a claim. As an application without notice, the applicant is subject to strict rules in terms of making full disclosure, providing significant undertakings and is under an obligation to notify the court of any circumstantial changes once an order is in place. Such obligations consequently make freezing order applications a very costly exercise.
The threshold that the applicant must satisfy is two-fold. Firstly, he must establish that he has a good, arguable case. Secondly, the applicant must show that the defendant has assets in the jurisdiction and that there is a real risk that such assets may be dissipated without a freezing order being granted. The final limb of the test essentially requires evidence of dishonesty. But what exactly is required to satisfy this point?
Clearly, it is insufficient to merely assert that someone is dishonest (Thane Investments Limited and others v Tomlinson and others (2004) EWCA Civ 1855). What is required is a clear correlation between the dishonest conduct asserted and dissipation - that is the dishonest conduct may necessarily involve disposing of assets. For a basic example, this would include evidence of someone evading capital gains tax and the risk that they might send the funds abroad.
As a severe interference with a person's proprietary rights, it is understandable that such orders are not granted lightly. However, arguably the level of risk that the applicant must demonstrate to the court is far from clear. This is all the more concerning for an applicant given that applications can be extremely costly procedures.
Whilst the courts gave some guidance in Thane as to relevant factors - including, poor credit record, lack of openness by a respondent in relation to his intentions for his assets and history of defaulting on debts, unlike an interim prohibitory injunction application, an applicant cannot be confident that he will be granted a freezing order which should only be applied for in exceptional circumstances.