AXNOLLER EVENTS LIMITED v NIHAL MOHAMMED KAMAL BRAKE & Anor

A freezing injunction may be continued after judgment where the applicant shows a good arguable case, assets within or outside the jurisdiction, a real risk of dissipation, and that continuation is just and convenient. The risk of dissipation is a question of fact. Historic conduct may establish the risk, and there is no fixed temporal limit, provided the conduct demonstrates a continuing propensity to conceal or dispose of assets. The court may include persons who have not themselves dissipated assets where their inclusion is necessary to prevent an obvious loophole in the protection afforded. Health difficulties carry limited weight where the order permits reasonable living, legal and medical expenditure. Disclosure obligations may properly be continued where asset explanations remain unsatisfactory.

The judgment concerned applications by Axnoller Events Ltd and The Chedington Court Estate Ltd to continue a worldwide freezing injunction against Nihal and Andrew Brake and Tom D’Arcy. The injunction had originally been granted without notice after judgments in related possession and eviction claims.

The applicants relied on earlier findings concerning the acquisition and disposal of property and business assets, removal of furniture and horses, and an apparently undervalued vehicle transfer. The respondents disputed the alleged dissipation and contended that the relevant events were historic, that their assets were limited, and that health circumstances made continuation inappropriate. The central issues were whether there remained a real risk of dissipation and whether continuation was just and convenient.

1. Continuation ordered. The worldwide freezing injunction was continued until trial or further order. The court also maintained the associated affidavit disclosure obligations.
2. The requirements for freezing relief had to be considered afresh on the return hearing, taking account of all material placed before the court. The applicants had a good arguable case and reason to believe that relevant assets existed within and outside the jurisdiction. The principal contested issues were real risk of dissipation and whether relief was just and convenient.
3. The risk of dissipation was established by a combination of recent and historic conduct. There was no authority requiring the conduct relied on to be recent. The question was whether, as a matter of fact, the demonstrated conduct showed a continuing risk. Earlier conduct involving nominees, concealment from creditors and breach of injunctions disclosed a propensity to hide assets. More recent dealings involving the Range Rover and furniture showed changing accounts and supported the continuing risk.
4. Although no dissipation by Tom D’Arcy was proved, his inclusion was justified to prevent an obvious loophole, given the established risk concerning Mr and Mrs Brake and his close involvement in acting through Mrs Brake.
5. Continuation was just and convenient. The applicants had a good arguable case that further assets had not been disclosed, while the order preserved provision for living and legal expenses. The respondents’ health circumstances carried no more than minimal weight provided access to appropriate treatment was not impeded.
6. The respondents’ explanations concerning assets remained unsatisfactory. It was therefore appropriate to require confirmation by affidavit of the information sought under paragraphs 10 and 11 of the order.