Thinking of applying for a freezing order? Think very carefully..
31st October 2016 by Rob Kelly
Orders of the court which freeze the assets of an opponent – commonly regarded as one of the law’s “nuclear weapons” – are an invaluable tool in litigation but their consequences can be far reaching and the court will come down heavily on those who misuse them. The point was strikingly brought home in Fiona Trust and Holding Corporation v Yuro Privalov and ors [2016] EWHC 2163 (Comm), a case in which one defendant businessman won tens of millions of dollars in compensation despite his own dishonest conduct.
The claimant had obtained a freezing order against the defendant in 2005 and a further order in 2007. The court held that when the claimants applied for the freezing orders, they committed serious breaches of their duty of disclosure and were guilty of misleading the court. The defendant’s conduct was also criticised but in awarding damages to the defendant the court held that his dishonest dealings and untruthful evidence did not undermine his right to compensation for losses that he had suffered due to the improperly obtained orders.
The amount of compensation to be paid is yet to be assessed but are expected to run into tens of millions of US dollars.
Comment: The cross undertaking in damages which an applicant for a freezing is required to give to the court as a condition of the court granting a freezing order is not a mere formality. It is the “price” which the applicant may end up paying for the injunction and the likely damage to the opponent as a consequence of the order being made should always be considered very carefully.
If you would like further information please contact Rob Kelly.
This article provides information and comments on legal issues and developments of interest. The contents of this article do not constitute legal advice, is not a comprehensive treatment of the subject matter covered, and should not be relied on as such. Legal advice should be sought about your specific circumstances before taking any action with respect to the matters discussed.
Rob Kelly
Senior Associate Solicitor — Dispute Resolution
Direct dial: 01202 377871
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“Rob Kelly has been absolutely exceptional in resolving this litigation and so thorough in everything and basically gave the opposition a masterclass of his work that he is so good at.”
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“I have had the pleasure of working with several members of the team at Laceys regularly over a period of years. I found Rob Kelly in particular, who worked on a successful litigation case for me over a period of several years to be outstanding in all aspects of the work he undertook, and the manner in which he did it. I now consider him a friend. I would not - and have not - hesitated to recommend Laceys to my family and friends, and continue to use them for all legal matters.”
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Rob practices in two main, complimentary areas of work – contentious wills, probate and trust disputes, and property disputes.
Contentious wills, probate and trusts
More than half of Rob’s time is spent dealing with the contentious aspects of wills, probate and trusts, an area in which he has practiced continuously for over 20 years. He advises and acts in disputes relating to wills and inheritance, trusts, the duties of trustees and personal representatives, and the administration of estate.
Rob’s practice embraces:
- Personal representative and trustee disputes (including personal representative and trustee disagreements, removals / substitutions and alleged misconduct)
- Disappointed beneficiary claims
- Will disputes (where the validity of a will is challenged on the grounds of undue influence, lack of testamentary capacity, lack of knowledge and approval of the contents of a will, and fraudulent calumny)
- Financial provision claims under the Inheritance (Provision for Family and Dependants) Act 1975
- Proprietary estoppel claims
- Disputes about the proper construction, and rectification, of wills
- Caveats
- Professional liability claims arising from the preparation of wills and trusts and the administration of estates
He has mediated (either as appointed mediator or as a representative) dozens of disputes involving contentious wills and probate issues.
Property disputes
The other side of Rob’s practice is contentious property work. This embraces:
- Residential and commercial landlord and tenant disputes
- Disrepairs
- Repairing covenants
- Possession claims
- Lease termination and lease forfeiture
- Dilapidations
- Service charge disputes
- Interpretation and enforcement of leasehold covenants
Rob’s style is a mix of listening, asking (tough) questions, diplomacy and reality testing. He’s interested, flexible, and pragmatic. He offers a common sense, realistic approach to assist his clients in searching for solutions to their disputes and brings straight talking and integrity to his work.
Rob is a Solicitor. He successfully completed training as a mediator under the ADR Chambers / Harvard Law Project Scheme in June 2006 and is a member of the Civil Mediation Council.
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