We have substantially revised this note and linked to new content on freezing orders.
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 (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 of the Supreme Courts Act 1981 (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 (9th edition) (www.practicallaw.com/2-205-4009), section F15 and Appendix 5.
- Queen's Bench Guide (www.practicallaw.com/2-205-4014), section 7.13.
- The Chancery Guide (www.practicallaw.com/6-205-4012), sections 5.25 to 5.36.
It is possible to seek a freezing order against a third party (against whom the applicant has no claim) where it appears that the assets, which are ostensibly those of the third party, are in fact, owned by the defendant. This is referred to as the Chabra jurisdiction, following the decision in TSB Private Bank International SA v Chabra  1 WLR 231.
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.
- 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 (see Practice note, Freezing injunctions: an overview: Duty of full and frank disclosure (www.practicallaw.com/8-203-9841)).
- The applicant's legal representatives also have a duty to the court (see Practice note, Freezing injunctions: an overview: Duties of the applicant's solicitor (www.practicallaw.com/8-203-9841)).
- An applicant will be required to give certain undertakings to the court, including an undertaking in damages (see Practice note, Freezing injunctions: an overview: Applicant's undertakings to the court (www.practicallaw.com/8-203-9841)).
- 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.
- Delay in applying for an injunction can jeopardise the application and weaken arguments that there is a real risk of the respondent dissipating his assets.
Key points for respondents
- The respondent should take all possible steps to ensure compliance with the terms of a freezing order.
- Any breach of the order may lead to committal proceedings for contempt of court.
- The respondent is likely to be required, within a specified period of time, to disclose details of his assets.
- The respondent should promptly consider whether there are any grounds for making an application to vary or discharge the order.
Freezing order procedure
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, Freezing injunctions: an overview: Where do I apply? (www.practicallaw.com/8-203-9841)
- 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).
- 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.
- If a freezing order is granted at the 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, Freezing injunctions: an overview: How do I apply? (www.practicallaw.com/8-203-9841)
Practical Law materials on freezing orders
- Freezing orders: a practical guide (www.practicallaw.com/8-567-3145).
- Freezing orders: what must be proved? (www.practicallaw.com/5-567-4066)
- How to apply for a freezing order (www.practicallaw.com/6-567-3146).
- Enforcing a freezing order (www.practicallaw.com/7-570-3925).
- Freezing orders: guidance for respondents and third parties (www.practicallaw.com/2-567-3266).
- Freezing injunction: case study (www.practicallaw.com/3-203-9872), including:
- Freezing injunction: letter of advice to respondent (worldwide freezing order) (www.practicallaw.com/8-508-0894).
- Freezing injunction in support of arbitration: case study (www.practicallaw.com/6-518-8942).