Irish Response Ltd v Direct Beauty Products Ltd & Anor

A freezing order requires a good arguable case, a real risk that a future judgment will remain unsatisfied, and a conclusion that relief is just and convenient. Alleged dishonesty alone does not establish a real risk of dissipation. The court must assess all relevant circumstances, including the defendant’s conduct, assets and financial history.

An applicant seeking without-notice freezing or search relief owes a broad duty of fair presentation, extending to material facts, law and procedure. Serious non-disclosure may justify discharge even where the order might otherwise have been granted.

A claim which requires relitigation of findings made by a competent court of another Member State may be an abuse of process. English law does not permit a claim in conspiracy founded on giving perjured evidence in judicial proceedings.

Irish Response Ltd brought claims against Direct Beauty Products Ltd and Simon Gook concerning the supply and resale of Nourkrin products. It alleged inducement of breaches of an exclusive distributorship agreement, unlawful means, and a conspiracy to give false evidence in Danish proceedings.

The defendants applied to discharge freezing and search orders, strike out the unlawful means and conspiracy claims, and obtain other procedural relief. Irish Response also sought permission to amend its pleading concerning the conspiracy claim.

The central issues were whether there was a good arguable case, a real risk of dissipation, proper fair presentation on the without-notice applications, and an actionable claim based on alleged perjury in Denmark.

1. Freezing order. The court applied the requirements identified in Ninemia Maritime Corporation v Trave Schiffahrtgesellschaft m.b.H. und Co. KG (The Niedersachsen): a good arguable case and a real risk that a judgment would remain unsatisfied. Even if those requirements are established, the ultimate question is whether relief is just and convenient. The American Cyanamid approach does not govern a freezing injunction.
2. Dishonesty, whether alleged or proved, is not by itself sufficient to establish a real risk of dissipation. All the circumstances must be considered. Here, the defendants had not rearranged their affairs despite receiving a letter before action in 2007, and their financial position and substantial English assets did not support an inference of dissipation.
3. The inducement claim could not presently succeed because the Danish court had determined that PMI had not breached the exclusive distributorship agreement. Articles 33(1) and 36 of the Council Regulation No. 44/2001 required recognition of the Danish judgment and prohibited review of its substance. The English claim was therefore a collateral attack and was stayed pending the Danish appeal, rather than dismissed.
4. The without-notice applications involved an egregious breach of the duty of fair presentation. The claimant failed to disclose material correspondence which substantially altered the assessment of risk and the merits. The freezing order and search order were therefore discharged.
5. Search order. The principles in Anton Piller KG v Manufacturing Processes Ltd require an extremely strong prima facie case, very serious potential or actual damage, and clear evidence that incriminating material is in the defendants’ possession with a real possibility of destruction. The material non-disclosure made continuation of the order inappropriate.
6. The unlawful means claim was struck out because the defence admitted the fact on which the pleaded alternative depended: PMI was aware that DBP intended to resell Nourkrin in the United Kingdom.
7. The conspiracy claim was bound to fail. English law recognises no tort of perjury, and Marrinan v Vibart precluded a conspiracy claim based on giving false evidence in judicial proceedings. A proposed hybrid claim could not combine an English conspiracy with an offence committed only under Danish law. Paragraphs 31–40 of the Particulars of Claim were struck out.

First-instance decision. The judgment records that the Danish judgment was under appeal in Denmark, but no appeal from the present decision is stated.