Judge rules that an undertaking in a freezing order had not been breached by orders obtained abroad

A freezing order granted in favour of the claimant contained an undertaking which provided that the claimant "will not without the permission of the court to seek to enforce this order in any country outside England and Wales or seek an order of a similar nature including orders conferring a charge or other security against the respondent or the respondent's assets". The issue in this case was whether the claimant had breached that undertaking by obtaining orders in both Lithuania and Switzerland restricting the use, or attaching the assets, of the respondent's assets in those countries.

Accordingly, the judge was required to decide whether the undertaking required permission only before taking any steps to enforce the freezing order abroad, or whether permission was also required before obtaining any order, independently of the freezing order, which is similar in nature or effect to the freezing order.

The judge noted that the inclusion of this undertaking originally in freezing orders was intended to avoid multiple proceedings enforcing the English freezing order and to prevent the enforcement of the order in a foreign jurisdiction having a more far-reaching effect in that jurisdiction than in England. Hamblen J had held in E & Ors v M [2013] that if an order of the foreign court is made based on different and independent rights, the English court's permission is not required. Accordingly, the judge concluded that the undertaking here had not been breached because here, the foreign orders (although similar in effect, in whole or in part, to the English freezing order) "were obtained pursuant to rights engrafted in Lithuanian and Swiss law in support of the Lithuanian Civil Claim independently of the existence of the Freezing Order granted in England".

The judge went on to hold that, even if he was wrong on the point above, he would have given permission for the foreign orders to continue and for the English freezing order to be maintained.