We have reviewed this note to ensure that it accurately reflects current law and practice.
Freezing injunctions: a quick guide
A quick guide to the effect of a freezing order, points of caution for applicants, a summary of the procedure and links to the rules.
What is it and when can it be used?
A freezing injunction (formerly called a mareva injunction) is an interim order which restrains a party from disposing or dealing with his assets. It can be sought before proceedings have been issued, or after trial or determination, to preserve the defendant's assets until judgment can be enforced. A freezing injunction can be made in respect of assets:
Within England and Wales (domestic freezing orders).
Situated outside the jurisdiction or worldwide (worldwide freezing orders or WFO).
Points of caution
A freezing injunction does not provide any security over the assets frozen. It does not give a claimant priority over the defendant's other creditors.
An applicant has an onerous duty of full and frank disclosure. He must disclose all material facts, including relevant legal principles, even if they are not in his favour.
An applicant's solicitor has 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. These will include 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 injunction may only be enforced in another jurisdiction with the English court's permission. It is not enforceable outside the jurisdiction and not binding on third parties overseas until it has been recognised, registered or enforced in the local court.
Where will I find the Court rules?
CPR 25 governs interim remedies generally.
PD 25A relates to interim injunctions.
Annex to PD25A provides a standard form freezing injunction.
The Admiralty and Commercial Courts Guide (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 - 5.36.
Applications for freezing injunctions may be made before issue of a claim or counterclaim, during proceedings or after judgment. A defendant can only obtain a freezing injunction after he has filed an acknowledgement of service or defence.
Applications should be made promptly.
Where the application is made after the issue of a claim form, the application, evidence and draft order should be filed at the court 2 hours before the hearing if possible (see PD 25.4.3 (1)).
The return date is usually a week or so after without notice hearing. In the Commercial Court, the return date is usually a Friday (see Admiralty and Commercial Courts Guide (www.practicallaw.com/2-205-4009) section F15.8).
What is the procedure for applying for a freezing injunction?
Usually apply without notice to judge in the High Court (see PD 2B 2.1). For the court's jurisdiction, see Practice note, Freezing injunctions: an overview: Where do I apply? (www.practicallaw.com/8-203-9841)
Prepare evidence by affidavit.
Draft order using the standard form annexed to PD 25A or Appendix 5 of the Commercial Court Guide.
File copies of application notice, evidence and draft order at court if time. See PD 25A.4.3(2).
Pay court fee for applications without notice. (See High Court fees: a quick guide. (www.practicallaw.com/3-205-8040))
Arrange for order to be drawn up and sealed.
Serve court order with application notice and evidence with exhibits and a full note of the hearing on respondent. Serve promptly and personally.
Serve court order on third parties known or believed to hold assets of respondent.
Full hearing on return date to determine whether 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).
Before making an application for a freezing injunction, applicants should be advised on the expense involved, onerous duty of disclosure and requirement to give undertakings to court (see Practice note, Freezing injunctions: an overview: Preliminaries (www.practicallaw.com/8-203-9841)).
Do not delay as this can jeopardise the application and weaken arguments that there is a real risk of dissipation of assets.
Ensure that the draft order uses clear and unambiguous language. If there is doubt to the meaning and effect, the court will construe it in the respondent's favour.
If the freezing order includes assets held by third parties, serve the order on the third parties before serving the respondent to reduce the risk of dissipation. (See Practice note, Freezing injunctions: an overview: When do I serve? (www.practicallaw.com/8-203-9841))
If you are the respondent, or acting for one, consider whether there are any grounds to vary or discharge the order and make any application promptly. (See Practice note, Freezing injunctions: an overview: Steps to be taken by the respondent (www.practicallaw.com/8-203-9841)).
- Freezing injunction: case study (www.practicallaw.com/3-203-9872).
- 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).