Guidance from the Court of Appeal in England and Wales considers the scope of the “expediency requirement” for freezing injunctions in aid of foreign proceedings
16 Sep 2024
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In Mex Group Worldwide Ltd v Ford (Mex Group) the English Court of Appeal considered an appeal against a decision to set aside a worldwide freezing order, originally granted under section 25 of the Civil Jurisdiction and Judgments Act 1982 (Section 25), sought in aid of proceedings before the Scottish Court relating to conspiracy claims.
Key takeaways from Mex Group include:
- Additional evidence can be adduced at appeal in accordance with Ladd v Marshall principles. The Court of Appeal was of the view that the new evidence adduced was relevant to the issues of (1) dissipation of assets and (2) establishing an arguable case. The court of first instance was correct to decide on the evidence available to it that there was no risk of dissipation of assets, however, the new evidence adduced before the Court of Appeal led it to conclude that there was a risk of dissipation of assets.
- Where there is a failure to provide “full and frank disclosure” at the ex parte hearing this provides a court with an independent basis for refusing to continue a freezing order, even where risk of dissipation of assets is established.
- A judgment of the Scottish Court was admissible before the Courts of England and Wales for the purposes of interlocutory remedies. In Mex Group, the Court of Appeal was of the view that the Scottish Court’s judgment, in particular its treatment of the concept of an “arguable case”, did not carry significant weight, and proceeded to consider the matter afresh taking account of all the evidence before it.
- The Defendants to the original action were not resident within England and Wales, nor had they any assets within that jurisdiction. In the circumstances, the Court of Appeal considered it “inexpedient” to grant a freezing order pursuant to Section 25 in aid of the Scottish proceedings. The Court of Appeal set a high bar of “exceptional circumstances” to justify granting a freezing order where no appropriate connection with the jurisdiction of England and Wales is established.
- Section 25 survived Brexit as it constitutes “assimilated domestic case law” as defined in section 6(7) of the Retained EU Law Act which continues to form part of the law of England and Wales.
Mex Group is persuasive authority before the BVI court and would likely be followed if a similar factual scenario were to arise in this jurisdiction. A BVI lawyer seeking to obtain a freezing order in support of foreign proceedings will have to consider the nexus between the foreign defendant(s) and the jurisdiction.
