Mackew v Moore

A worldwide freezing injunction should not ordinarily be used to preserve assets situated in a foreign state where the defendant is resident there and the foreign courts have jurisdiction to grant equivalent protective relief. Comity requires the English court to leave questions concerning those assets to the foreign courts, particularly where the claimant has already sought and failed to obtain such relief abroad. A claimant must also establish a good arguable case, insufficient domestic assets, and a real risk of dissipation or secretion. Parallel proceedings to enforce the same claim may constitute an abuse of English process. Material non-disclosure on an ex parte application may independently justify discharge.

The claimant sought payment of €440,000 under a deed of guarantee and indemnity. He obtained without-notice a limited worldwide freezing injunction against the defendant, whose residence and identified assets were in Switzerland.

Before the English application, the claimant had begun Swiss summary enforcement proceedings and had sought protective orders from the Swiss courts. Those applications were refused. The defendant applied to discharge the English injunction, relying on the Lugano Convention, the prior Swiss proceedings, the absence of a real risk of dissipation, parallel-proceedings abuse, and material non-disclosure.

The central issues were whether the Swiss proceedings had first seised the Swiss court for the purposes of the Lugano Convention and whether the English injunction should nevertheless be continued.

1. The Swiss commandement de payer did not institute proceedings before a court for the purposes of Articles 27 and 30 of the Lugano Convention. It was issued by an administrative authority and was not lodged with the court. The Swiss court became involved only when the claimant applied to lift the defendant's opposition. The English court was therefore seised first, and Article 27 did not mandate a stay or dismissal.

2. The applicable requirements for a worldwide freezing injunction were a good arguable case, no or insufficient assets within the jurisdiction with assets elsewhere, and a real risk that assets would be disposed of or secreted so as to frustrate enforcement. The court also had to consider all the circumstances and whether relief was just and appropriate.

3. The claimant failed to establish a real risk of dissipation. Independently, the relevant circumstances made relief inappropriate. The defendant was habitually resident in Switzerland, had no significant English assets, and the claimant's Swiss applications had sought protective measures comparable to an English freezing injunction. In principle, the Swiss courts alone should determine and enforce measures concerning the defendant's Swiss assets.

4. Comity made it inappropriate, save perhaps in exceptional circumstances, for the English court to second-guess the Swiss court's refusal of protective relief. The claimant's pursuit of the Swiss enforcement procedure after obtaining the English injunction was also, in principle, an abuse of English process. Any injunction would have been conditional on withdrawal of the Swiss procedure.

5. The claimant had failed to disclose the defendant's known Swiss address and the existing commandement de payer, together with the nature and potential consequences of the Swiss procedure. Those matters had real potential to influence the without-notice decision, although it was unnecessary to determine the non-disclosure issue because the injunction failed on the substantive grounds.

6. The freezing order made by Maddison J was discharged.