ICICI Bank UK Plc v Diminco NV (Rev 1)

Under section 25 of the Civil Jurisdiction and Judgments Act 1982, the English court may grant interim relief in support of foreign proceedings where doing so is just and expedient. A domestic freezing order will often be appropriate where there is evidence of assets within England and Wales. A worldwide order against a foreign defendant with no English residence or in personam connection is exceptional. The applicant must show a real connecting link with England and Wales, that relief can properly be granted consistently with comity and enforced in practice, and that the discretionary factors governing international relief favour the order. Ancillary disclosure may support a domestic freezing order. A freestanding order requiring disclosure of foreign assets is generally inappropriate where the defendant is outside the court’s enforcement jurisdiction and no real connecting link exists.

The claimant, an English bank, sought interim relief under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of Belgian proceedings concerning a substantial debt owed by the defendant, a Belgian diamond distributor.

An inter partes worldwide freezing order had previously been made, without asset disclosure provisions. The claimant sought continued worldwide freezing relief and disclosure of assets and bank statements worldwide. The defendant did not participate actively and did not serve evidence in accordance with an order of the court. The central issues were whether there was a real risk of dissipation and whether worldwide freezing or disclosure relief was inexpedient because the defendant had no English residence or in personam connection.

1. Application granted in part. The evidence established a clear and real risk that assets would be dissipated without relief. The claimant also had, at the least, a good arguable case on the debt.

2. Section 25 permits interim relief in aid of foreign proceedings unless the absence of jurisdiction apart from that section makes relief inexpedient. The authorities identify the relevant considerations, including interference with the primary court, the policy of that court, risks of conflicting or overlapping orders, possible jurisdictional conflict, comity, the territorial connection, and the practical ability to enforce the order.

3. Where a foreign defendant has no assets in England and Wales and owes no allegiance to the English court through domicile, residence or another in personam connection, a worldwide freezing order will rarely be appropriate. In exceptional cases the applicant must establish a real connecting link with England and Wales, that it is appropriate within the limits of comity for the English court to act, that the order can be enforced in practice, and that the discretionary factors favour relief.

4. The existence of identified bank accounts at London branches, together with evidence of previous credit balances and the absence of contrary evidence, was sufficient to justify a domestic freezing order over all assets in England and Wales. Ancillary disclosure was also justified, including current assets exceeding £10,000, bank statements since 13 December 2011, and historic assets in the jurisdiction where their identification might assist in tracing current assets.

5. Worldwide freezing relief was no longer pursued. A freestanding order requiring disclosure of assets outside England and Wales was refused. Disclosure in that respect could not be justified as ancillary to foreign-asset freezing relief which would itself be exorbitant and inexpedient. The English court lacked an effective sanction against the Belgian defendant, and the proposed order would not materially assist any process which the Belgian court could exercise.

This was a first-instance return hearing. An inter partes worldwide freezing order had been made by Eder J on 18 July 2014. Andrew Smith J subsequently directed the defendant to serve evidence by 14 August 2014. The present court continued relief only in relation to assets and disclosure within England and Wales and refused relief concerning foreign assets.