Kanev-Lipinski v Aharon Lipinski & Ors

Relief under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of foreign proceedings requires the court to ask whether equivalent relief would be granted if the main proceedings were in England and Wales and whether granting it would nevertheless be inexpedient. Freezing relief requires a good arguable case and a real risk of dissipation grounded in evidence, not suspicion or hostility. A claimant pursuing a money claim abroad cannot obtain proprietary relief in England under section 25 merely by describing it as asset preservation. Ancillary disclosure relief falls with the substantive restraint and may also be refused if it is wider than necessary for policing that restraint.

The claimant sought continuation and reformulation of freezing and asset-preservation orders obtained without notice in support of divorce and asset-division proceedings before the Israeli family court. The proceedings concerned the parties’ interests in UK property companies and the claimant’s anticipated balancing-payment judgment after a valuation by KPMG.

The defendants alleged material non-disclosure at the without-notice hearing. The claimant also sought restraints on company transactions, withdrawals and dealings with shares, disclosure of company information, and permission to amend the claim form to add a contractual disclosure claim. The central issues were whether the statutory and freezing-order requirements were met, whether proprietary relief was available for a foreign money claim, and whether the amendment application should proceed.

1. Non-disclosure. Applying the principles summarised in Arena Corporation Ltd (in Provisional Liquidation) v Peter Schroeder [2003] EWHC 1089, the court found no material non-disclosure at the December without-notice hearing. The relevant information had either been disclosed, fairly presented, or was not shown to have been material to the decision. The claimant’s submissions had occasionally overstated matters, but that did not justify discharge where the material facts were before the judge (paras [23]-[47]).
2. Section 25 relief. Under section 25 of the Civil Jurisdiction and Judgments Act 1982, the court applied the two questions identified in Credit Suisse v Cuoghi [1998] QB 818: whether equivalent relief would be granted if the main proceedings were in England and Wales, and whether it was nevertheless inexpedient to grant relief. The claimant had a good arguable case for an eventual substantial money judgment, but failed to establish a real risk of dissipation (paras [48]-[50], [67]-[73]).
3. Risk of dissipation. The matters relied on were consistent with ordinary business activity or were satisfactorily explained. They did not demonstrate actual dissipation or a factually grounded risk. Relevant safeguards included lender supervision, regular accounting and auditing, secured lending and the absence of dissipation during the period since divorce (paras [51]-[68]).
4. Proprietary relief and disclosure. Because the Israeli claim was for a money judgment, the claimant could not obtain an order preventing dealings with the shares as proprietary relief under section 25. Freezing-order principles applied, and those requirements were not met. The disclosure orders sought as ancillary policing measures therefore failed with the financial restraints; in any event, they were wider than necessary. The application to amend was adjourned to a fixed date, because the Israeli court was the appropriate court to determine the jurisdictional and forum issues concerning any contractual disclosure claim (paras [74]-[88]).

This was a first-instance substantive return hearing concerning orders made without notice by the High Court on 21 December 2015 and continued with amendments on 12 January 2016. The application to amend the claim form was adjourned to a fixed date before the same judge.