Investohills Vesta v Petergrow Ltd & Ors

Where a freezing order requires disclosure to be confirmed by affidavit, the court should ordinarily maintain that requirement because of the formal sanctions attached to a sworn statement. However, the requirement may be dispensed with where compliance is exceptionally difficult and the information has already been provided in witness statements supported by statements of truth. The court must balance the practical burden against the prejudice caused by losing the additional safeguards of an affidavit. A possible remote swearing procedure under the Commissioners for Oaths Act 1889 was not finally determined on paper because of its wider procedural implications. The court may refuse the application for the time being while granting liberty to reapply when the practical circumstances change.

The applicant sought a further order requiring the Sixth, Eighth and Sixteenth Respondents to provide disclosure required by a worldwide freezing order in affidavits. The relevant respondents were in Cyprus and Ukraine during pandemic-related restrictions. They contended that obtaining sworn affidavits was exceptionally difficult or practically unavailable locally.

The applicant argued that affidavits could be sworn remotely before a United Kingdom Commissioner for Oaths, or before persons authorised under local law. The court also considered whether existing witness statements supported by statements of truth supplied sufficient protection. The central issues were whether an affidavit was necessary, whether it was practicable to obtain one, and whether the balance of prejudice justified enforcing the existing requirement.

1. The application was refused. The court did not make the requested order requiring affidavits by 4 pm on 29 January 2021.

2. An affidavit is ordinarily appropriate where a freezing order requires confirmation of asset information. The formality of swearing is intended to emphasise the seriousness of the disclosure and exposes deliberate untruthfulness to sanctions for perjury and contempt. The example freezing order appended to Practice Direction 25A is modifiable, however, and the court could have ordered disclosure without an affidavit.

3. The court considered that there was a strong argument that remote swearing might be permitted by the Commissioners for Oaths Act 1889. Sections 1(2), 3(1) and 5 did not expressly prohibit a remote appearance, and there was no obvious policy reason why an oath could not be administered by video link. The court declined to decide that issue because the application was interlocutory, the argument had not been fully tested, and a ruling could have wider implications across many areas of practice.

4. Section 3(1) permitted an oath or affidavit for an English matter to be taken outside England before a person authorised to administer oaths in that place. The available evidence nevertheless established that obtaining affidavits in Cyprus and Ukraine would be very difficult in the prevailing circumstances.

5. The court balanced that difficulty against the applicant’s loss of the additional safeguards of an affidavit. The respondents’ witness statements contained statements of truth compliant with CPR Part 22. Knowingly false statements could therefore expose the makers to contempt proceedings under CPR Part 81, including rule 81.3(5)(b). In the circumstances, requiring affidavits within the existing timeframe was disproportionate and contrary to the interests of justice.

6. Liberty was granted to reapply if evidence later showed that the respondents could access a means of swearing oaths without undue burden. No order for costs was made.