Amended to reflect the new Queen's Bench Guide.
Freezing orders: a quick guide
An introduction to freezing orders, what they are, the procedure and key points for applicants and respondents. This note provides links to Practical Law's more detailed materials on freezing orders.
What is a freezing order?
A freezing order (formerly called a mareva injunction) is an interim injunction that restrains a party from disposing of or dealing with his assets. The usual purpose of a freezing order is to preserve the defendant's assets until judgment can be enforced.
A freezing order can be made in respect of assets:
Within England and Wales only (domestic freezing order).
Situated outside the jurisdiction or worldwide (worldwide freezing order or WFO).
The court's jurisdiction to grant a freezing order is derived from section 37 ( www.practicallaw.com/3-508-4564) of the Senior Courts Act 1981 ( www.practicallaw.com/2-508-2457) (SCA 1981). The relevant procedural rules are in CPR 25 and PD 25A.
The individual court guides also contain specific provisions regarding freezing orders, see:
The Admiralty & Commercial Courts Guide ( www.practicallaw.com/2-205-4009) , section F15 and Appendix 5.
Queen's Bench Guide ( www.practicallaw.com/2-205-4014) , sections 14.2 to 14.4.
Chancery Guide ( www.practicallaw.com/6-205-4012) sections 16.25 to 16.27.
Requirements for a freezing order
A freezing order is an equitable remedy. The court will exercise its discretion to grant a freezing order only where it considers it just and convenient to do so (section 37(1), SCA 1981).
In addition, case law has established the following conditions for a freezing order:
The applicant must have a cause of action, that is, an underlying legal or equitable right.
The applicant must have a good arguable case.
The existence of assets within the jurisdiction.
A real risk of the respondent's assets being dissipated.
Key points for applicants
A freezing order does not provide any security over the assets frozen. Also, it does not give a claimant priority over the defendant's other creditors if the respondent becomes insolvent.
An applicant has an onerous duty of full and frank disclosure of all material facts, even if they are not in his favour (see Practice note, How to apply for a freezing order: Duty of full and frank disclosure ( www.practicallaw.com/6-567-3146) ).
The applicant's legal representatives also have a duty to the court (see Practice note, How to apply for a freezing order: Duties of the applicant's solicitor ( www.practicallaw.com/6-567-3146) ).
An applicant will be required to give certain undertakings to the court, including an undertaking in damages (see Practice note, Freezing orders: a practical guide: Applicants undertakings to the court ( www.practicallaw.com/8-567-3145) ).
A freezing order may only be enforced in another jurisdiction with the English court's permission. It is not enforceable outside the jurisdiction, and is not binding on third parties overseas, until it has been recognised, registered or enforced in the local court.
Do not delay in applying for a freezing order, as this can jeopardise the application and weaken arguments that there is a real risk of dissipation of assets.
Key points for respondents
Strict compliance with a freezing order is required. A respondent should take all possible steps to ensure compliance, including giving notice of the terms of the order to all relevant parties such as employees, banks, and others who jointly hold assets with or on behalf of the respondent.
Any breach of the order may lead to committal proceedings for contempt of court.
The respondent should obtain legal advice if he has any doubt as to the effect of the order or the steps required to comply with it.
The respondent is likely to be required, within a specified period of time, to provide an affidavit setting out details of his assets.
Promptly consider whether there are any grounds for making an application to vary or discharge the order.
For more information, see Practice note, Freezing orders: guidance for respondents and third parties ( www.practicallaw.com/2-567-3266) .
Procedure when applying for a freezing order
Freezing orders are usually sought without notice to the respondent, as giving notice would defeat the purpose of the injunction. Applications are made under the procedure in CPR 23, generally, to a judge in the High Court or a circuit judge in the County Court. For the court's jurisdiction, see Practice note, How to apply for a freezing order: To which court do I apply? ( www.practicallaw.com/6-567-3146)
The application notice should be completed using Form N244 ( www.practicallaw.com/8-205-6543) or, in the Commercial Court, N244 (CC) ( www.practicallaw.com/0-506-7561) or, if in the Financial List, either N244(CCFL) ( www.practicallaw.com/0-619-0094) or N244(CHFL) ( www.practicallaw.com/3-619-0097) .
Evidence in support of the application should be made in an affidavit (PD 25A.3.1).
The draft order should generally be based on the standard form annexed to PD 25A, or Appendix 5 of the Commercial Court Guide. Any differences from the standard form should be brought to the court's attention.
If a freezing order is granted at a without notice hearing, it will usually be made for a specified period of time, and a return date will be fixed for a full hearing.
The applicant should promptly serve the order (and other necessary documents) on the respondent and any third parties known or believed to hold assets of respondent.
At the full hearing, the court will determine whether the injunction should be continued, varied or discharged.
For detailed guidance on the procedure, see Practice note, How to apply for a freezing order ( www.practicallaw.com/6-567-3146) .