United States of America (USA) v Abacha & Ors

For interim relief under section 25 of the Civil Jurisdiction and Judgments Act 1982, the applicant must establish that the foreign proceedings are civil, that there is a good arguable case, that dissipation presents a real risk, and that relief is expedient. A foreign forfeiture claim may be civil even though criminal conduct must be proved. The fact that the resulting judgment may not be enforceable at common law does not make interim relief inexpedient where the order merely preserves assets pending lawful enforcement under a statutory scheme. Courts should provide appropriate assistance in combating international corruption, subject to comity and the circumstances of the primary proceedings.

The United States sought continuation of a freezing injunction granted under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of civil forfeiture proceedings in the United States. The proceedings concerned assets allegedly derived from corruption and money laundering. Several financial institutions did not resist continuation, while Blue Holdings argued that the United States claim was criminal, that any judgment would be unenforceable in England, that a Nigerian settlement made relief inexpedient, and that there had been material non-disclosure concerning a cross-undertaking in damages. The central issues were whether the statutory requirements were satisfied and whether continuation of the injunction was expedient.

1. The freezing injunction was continued. The claimant had established a good arguable case and a real risk of dissipation, and the contrary was not argued.

2. The United States forfeiture proceedings were civil for the purposes of section 25(1)(a) of the Civil Jurisdiction and Judgments Act 1982. Although the claimant had to prove that specified offences had been committed, the proceedings did not involve prosecution or sentencing of an individual. Their substance was the vesting of property used in or resulting from crime in the United States Government.

3. The fact that a judgment might not be enforceable in England at common law, whether in rem or in personam, did not make interim relief inexpedient. The application sought an order to hold the ring until the judgment could lawfully be enforced under Part 5 of the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005. It was not an application to enforce the foreign judgment.

4. The court rejected the argument that relief was unavailable because the statutory enforcement machinery could not presently be used. The United States’ exercise of sovereign authority, rather than an application by a United Kingdom enforcement authority, did not prevent assistance under section 25. Mutual respect for territorial jurisdiction was consistent with appropriate judicial assistance concerning assets within England.

5. The Nigerian settlement did not justify refusing continuation. The United States was not party to it, and whether it constituted a defence or was otherwise relevant to the foreign claim was for the United States court. The court also found no material non-disclosure concerning the cross-undertaking in damages.

Not stated in the judgment.