Hiscox Services Ld & Ors v Abraham

A freezing order made under section 25 of the Civil Jurisdiction and Judgments Act 1982 may be continued where there is a good arguable case, a real risk of dissipation, assets within the jurisdiction and no reason why support for the foreign proceedings would be inexpedient. The court retains a discretion to refuse continuation where the order is oppressive or prevents the respondent obtaining legal advice or funding a defence. That concern will not prevail where reasonable funding arrangements and alternative means of putting evidence before the court remain available.

The claimants sought continuation of a freezing order made by Hildyard J under section 25 of the Civil Jurisdiction and Judgments Act 1982. The order supported proceedings in Bermuda and a worldwide freezing order made by the Supreme Court of Bermuda against the respondent, a former chief financial officer.

The evidence concerned allegedly fraudulent payments and assets in England. The respondent did not attend, but complained that the injunction prevented him from obtaining legal advice, funding his defence and complying with the order requiring disclosure of his assets. The central issue was whether the English order should be continued as a matter of discretion.

1. Continuation granted. The court continued the freezing order and made a separate order requiring the respondent to file and serve an affidavit of assets.
2. The statutory thresholds were satisfied. There was a good arguable case of breach of fiduciary duty. It was not inexpedient for the English court to support the Bermudian court. Assets were established within the jurisdiction, including a bank account and pension policy.
3. There was a real risk of dissipation or secretion of assets, or of the respondent using ownership or control of property to frustrate the ends of justice. The allegedly fabricated invoices, the mobility of the assets and respondent, his international travel, and his failure to disclose his English assets supported that conclusion.
4. The court then considered whether discretion should nevertheless be exercised against continuation because the order allegedly prevented access to legal advice and litigation funding. The claimants had consented to a payment of US$20,000 for Bermuda legal fees, and the existing order provided for weekly living expenses.
5. The respondent had not shown that the order prevented him from presenting his case. He could provide a witness statement, letter or email if he could not afford an affidavit. The court could take correspondence into account, although formal evidence remained important. His failure to use those available means did not make continuation oppressive.
6. The respondent was given generous additional time to provide an accurate affidavit, particularly because earlier statements about his assets contained critical errors and inaccuracies.

The judgment describes an earlier ex parte freezing order made by Hildyard J on 30 April 2018 and determines the subsequent application for its continuation. No appeal or lower-court judgment is stated.