UL v BK

A freezing order is not a means of securing a prospective financial award. An applicant must provide clear evidence of unjustified dealings with assets, or threats, giving rise to a solid risk of dissipation to the applicant’s prejudice. The requirements apply equally in the Family Division and other High Court divisions.

Ex parte relief requires exceptional urgency. Short informal notice should be given unless secrecy is essential, and the order must contain stringent safeguards, including appropriate undertakings and exceptions for living and legal expenses. Breach of the duty of candour will usually result in discharge. A fresh order after discharge is exceptional and must be approached sparingly.

The wife sought continuation of an ex parte freezing order made on 21 February 2013 in financial remedy proceedings. The order restrained a Marbella property and froze further assets in the husband’s sole name up to £20 million. It omitted standard safeguards, gave no adequate explanation for the absence of notice, and was supported by evidence that did not establish a solid risk of dissipation.

The wife had also relied on documents obtained from the husband’s private papers without fully disclosing how they had been obtained. The husband offered an undertaking concerning the Marbella property. The central issues were whether the freezing order should be discharged, whether it should be re-granted, and how the unlawfully obtained documents should be handled.

1. Disposition. The ex parte freezing order was discharged and was not re-granted. The husband’s undertaking not to dispose of, charge or otherwise deal with the Marbella property was accepted.
2. The power to grant injunctions is a hybrid of historic equitable jurisdiction and statutory intervention. It is regulated by section 37 of the Senior Courts Act 1981, and there is no wider protean inherent power which permits the court to disregard the statutory principles. The same principles apply in the Family Division and the other High Court divisions.
3. The court may preserve specific tangible property which is the subject matter of proceedings. That jurisdiction is distinct from a freezing order over money or unspecified assets. Where an order can embrace all assets up to a specified sum, the freezing-order safeguards must be applied scrupulously.
4. Under section 37 of the Senior Courts Act 1981 and section 37 of the Matrimonial Causes Act 1973, the applicant must show by clear evidence an unjustified dealing with assets, including threats, giving rise to a solid risk of dissipation to the applicant’s prejudice. Such conduct will normally support an inference of an intention to defeat the claim. Bare suspicion, anxiety, or unparticularised threats are insufficient.
5. An ex parte application requires exceptional urgency. Short informal notice should be given unless it is essential that the respondent is unaware. No notice is justified only where powerful evidence shows that notice would defeat the purpose of the injunction, or where there is literally no time to give notice. The order should record the reason. A high duty of candour applies even where short notice is given.
6. The standard safeguards are critical. Departures must be drawn unambiguously to the judge’s attention and clearly justified. Undertakings in damages are required for the respondent and should almost invariably be required for an affected third party. After a breach of full and fair disclosure, the usual course is discharge and refusal to renew until trial. Re-grant remains possible only sparingly, having regard to culpability, the significance of the non-disclosure, the merits, proportionality and all the circumstances.
7. It is unlawful to furtively copy a spouse’s private documents. Confidentiality does not depend on locks or keys. Solicitors receiving such documents must not read them and must return or retain them unread in accordance with the court’s directions. The spouse may use knowledge of the documents to challenge disclosure or support an application, but must candidly disclose the source and circumstances of the knowledge.
8. A new or substantially expanded injunction should be sought by the proper application procedure and supported by specific evidence. It should not be introduced for the first time in skeleton argument. A claim for breach of confidence and misuse of private information may appropriately be heard by a specialist judge in another Division as a preliminary issue where it is technical, outside familiar family-law territory and will not materially delay the family proceedings.

First-instance application. The judgment records an ex parte freezing order made on 21 February 2013 and a return hearing adjourned by agreement to 16 May 2013. No appellate history is stated.