Akcine Bendrove Bankas Snoras v Antonov & Ors

An undertaking accompanying a worldwide freezing order requires permission before the claimant seeks foreign relief which directly or effectively enforces, or duplicates, the English order. It does not ordinarily require permission for relief obtained under an independent foreign jurisdiction and in support of separate foreign proceedings, even where the relief is similar in effect or the claims substantially overlap. The relevant question is whether the foreign relief depends upon or derives from the English order. Similarities between the orders are secondary. The undertaking is directed principally to preventing oppressive enforcement abroad and the English order acquiring a wider or different effect.

The claimant had obtained a worldwide freezing order against the first defendant in support of English proceedings concerning alleged misuse of the claimant bank’s assets. The order included an undertaking not to enforce it abroad or seek an order of a similar nature without the court’s permission.

The claimant later commenced proceedings in Lithuania and obtained asset-arrest orders there and in Switzerland in support of those proceedings. The foreign claims overlapped substantially with parts of the English claim, but were formulated on different legal bases and included proprietary relief. The issue was whether obtaining the foreign orders breached the undertaking. Alternatively, the claimant sought retrospective permission.

1. The application for a declaration was allowed. The Lithuanian Arrest and Swiss Arrest did not breach the undertaking.

2. The undertaking originated in the concerns identified in Derby & Co Ltd v Weldon [1990] Ch 48: preventing oppressive multiplicity of enforcement proceedings and preventing an English freezing order from having a wider or different effect abroad. Its purpose was not to regulate every independent application for foreign interim relief.

3. Following the analysis in In the matter of an LMAA Arbitration E, F, G v M (F v M) [2013] EWHC 895 (Comm), permission is required where the foreign relief directly or effectively, in substance, enforces the English freezing order. Permission is not required where the foreign court exercises an independent jurisdiction arising from a different right, even if the foreign order is similar in nature or effect.

4. The decisive question was whether the foreign orders depended upon or derived from the English freezing order. The Lithuanian and Swiss orders were obtained under Lithuanian and Swiss law in support of the Lithuanian Civil Claim, not the English claim. Their jurisdiction did not depend on the English order. The overlap between the claims therefore did not engage the undertaking.

5. The guidelines in Dadourian Group International v Simms [2006] EWCA Civ 399; [2006] 1 WLR 2499 were principally directed to enforcement of the English order abroad and did not alter that conclusion.

6. Alternatively, if there had been a breach, the court would have maintained the freezing order and permitted continuation of the foreign arrests. The alleged breach would have been inadvertent, there was no demonstrated oppression or prejudice, and the continuing risk of dissipation remained substantial.