Mark v Mark & Anor

A freezing order may be varied to permit the administrative relocation of funds while preserving the existing restraint. Joint control by the opposing solicitor is not required without evidence of breach or a sound evidential basis for an intended breach. Such a variation does not determine beneficial ownership, which remains for the substantive ancillary-relief hearing. Where funds are moved abroad, a mirror order in the new jurisdiction may provide additional protection. The intervening trustee need not ordinarily meet the initial cost of obtaining it. An appeal has no real prospect of success where it challenges evidential findings without demonstrating a proper basis for interference.

The wife and husband were engaged in complex ancillary-relief proceedings involving approximately £6 million held in four bank accounts. Singer J varied a freezing order on 17 March 2005 so that the funds could be transferred from accounts at the Northern Bank and Allied Irish Bank to accounts at Bristol & West International Bank, Guernsey, subject to the same restraint.

The wife alleged that the transfer would give the trustee greater control, asserted that the trustee had breached the freezing order, and contended that the judge had resolved the disputed beneficial ownership of the funds. She sought reinstatement of an earlier dismissed permission application, an extension of time, permission to rely on fresh evidence, and permission to appeal. The central issue was whether the proposed appeal had a real prospect of success.

Lord Justice Wilson delivered the principal judgment, with which Lady Justice Arden agreed.

1. The application to reinstate the permission application was granted. The court proceeded on the hypothetical basis that time would be extended, but concluded that the proposed appeal had no real prospect of success. Permission to appeal was therefore refused.
2. The judge was entitled to reject the allegation that the trustee had breached the freezing order. No payment from the four accounts had been demonstrated, and the proposed fresh evidence did not establish that the trustee intended to act in contempt of court. The court could not interfere with that evidential conclusion.
3. The judge’s order addressed an administrative problem caused by the closure of the Northern Bank. It did not determine the disputed beneficial ownership of the funds. That issue remained for the substantive ancillary-relief hearing.
4. If the wife obtained sufficiently strong evidence of an actual or intended breach, she could bring contempt proceedings or apply to vary the freezing order on the ground that it gave inadequate protection. The transfer itself did not demonstrate that the trustee would have greater control or that its assurances were unreliable.
5. A mirror order in the relevant foreign jurisdiction would provide additional protection by binding both the trustee and the receiving bank. The stay was continued for 14 days, and thereafter until determination of the mirror-order application, provided the wife issued it within that period. The trustee was to consent to the application. It was not reasonable, at least initially, to require the intervening trustee to pay the wife’s costs of obtaining the mirror order.
6. The application to rely on further evidence was refused.

• Court of Appeal (Civil Division), [2006] EWCA Civ 1164: reinstated the permission application, refused permission to appeal, refused permission to rely on further evidence, and continued the stay subject to the filing of a mirror-order application.
• High Court, Family Division: Singer J varied the freezing order on 17 March 2005 to permit the transfer of the frozen funds while preserving the restraint.