In Fourie v Le Roux & Ors – Lawtel 24.1.07 the appellant had applied without notice for a freezing order. The respondents applied to have it set aside and the court acceded to the application having concluded that ‘the court had no jurisdiction to grant a freezing order in circumstances where the applicant had no intention of issuing proceedings immediately or almost immediately.’ The decision was upheld on appeal and the appellant appealed against that ruling.
The House of Lords held that the judge had had jurisdiction, in the strict sense, to grant an injunction against the respondents. Both had been within the territorial jurisdiction of the court at the time that the freezing order was made and both had, shortly after the making of the freezing order, been served with an originating summons in which relief in the form of a freezing order had been sought. Section 25 Civil Jurisdiction and Judgments Act 1982, as extended by the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, was to enable the High Court "to grant interim relief" in relation to "proceedings" that had been or were about to be commenced in a foreign jurisdiction, for example, South Africa. The real issue, however, was whether it had been proper, in the circumstances as they stood at the time that the judge made the freezing order, for him to make it. That issue involved an examination of the restrictions and limitations that had been placed by a combination of judicial precedent and rules of court on the circumstances in which the injunctive relief in question could properly be granted. It was very difficult to visualise a case where the grant of a freezing order, made without notice, could be said to have been properly made in the absence of any formulation of the case for substantive relief that the applicant for the order intended to institute. In the circumstances as they stood before the judge, the protection for the defendant that ought to be associated with the grant of a without notice freezing order had been absent. The protection ought to include directions about the institution of proceedings for substantive relief, yet no such directions had been given. The deputy judge had therefore been entitled to discharge the freezing order.
There was one dissenting judgment on the issue of indemnity costs. Although the majority found that it was difficult to identify why the procedural deficiencies of the application for the freezing order should have warranted an indemnity costs order against the appellant, they held that it was not appropriate to interfere with the decision of the lower courts. The dissenting lawlord held that an award of costs on the indemnity basis would not be justified unless the conduct of the paying party could be said in some respect to have been unreasonable and that it was not possible to detect anything in the appellant's conduct that had been unreasonable in the relevant sense.