Whether delay fatal to application for a freezing injunction and requirements for an “anchor defendant”

Various issues arose in this case regarding the continuation of worldwide freezing orders against the defendants. One of the issues was whether delay by the applicant was fatal to the application. The respondent had received a formal demand threatening asset seizure in July 2016 and was notified that a claim form had been issued against her in August 2016, but no application for a freezing order was made in England for a further 7 months (settlement discussions having taken place during this time). HHJ Waksman QC noted that delay alone will not usually prevent the grant of a freezing order if the court is satisfied that there is still a real risk of dissipation. However, on the facts, the judge found that a risk of dissipation could not be proven “on the simple basis that if Mona did really pose such a risk, or the Bank thought that she did, it is somewhat odd that it took no earlier step to secure its position; it could still have negotiated with her afterwards” (paragraph 92).

A further issue in the case related to Article 8(1) of the recast Brussels Regulation which provides that a person domiciled in a Member State may also be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together”. In Bord Na Mona Horticulture Limited & Ors v British Polythene Industries PLC [2012] EWHC 3346 (Comm) Flaux J held that, if (contrary to his decision) the claim against the “anchor defendant” had been struck out, he would have concluded that jurisdiction against the other defendants under Article 8(1) could not be maintained. Applying that decision here, HHJ Waksman QC concluded that there was a properly arguable case against one of the anchor defendants (and the applicant need only find a real prospect of success against one anchor defendant) and so jurisdiction under Article 8(1) was satisfied. The same position would have applied had it been concluded that this fell under the common law rather than the recast Brussels Regulation.

This case reflects the decision in Anglo-Financial SA v Goldberg [2014] EWHC 3192 (ch) where the claimant was refused a freezing injunction, in part because it had delayed by entering into lengthy negotiations to seek payment from the defendant. However, this case also recognises that whether or not delay is relevant to a freezing order application will depend on the particular circumstances of the case