Summary
A worldwide freezing order may be continued after non-disclosure where the interests of justice require it. The usual starting point is discharge, but an isolated and inadvertent omission which does not materially undermine the relief may be excused where discharge would cause injustice. On an inter partes hearing, disputed facts should generally be left for trial, but the court must assess whether a plausible evidential basis establishes a good arguable case. The court found a good arguable case of a major international fraud, claims in equity, breach of fiduciary duty, insolvency and conspiracy, together with a real risk of dissipation and assets within the jurisdiction. The freezing order was continued to trial at its existing value.
Factual background
The claimants, companies in liquidation and their liquidators, alleged that the defendants were involved in a substantial international fraud involving bullion advanced to companies in India and funds transferred through multiple corporate layers.
At an earlier without-notice hearing on 27 May 2022, the court granted a worldwide freezing order. The defendants applied for its discharge on grounds of non-disclosure and unfair presentation. The claimants sought continuation of the order to trial. The central issues were whether the claimants had a good arguable case on the pleaded claims, whether there was a real risk of dissipation, and whether the order should be discharged or continued despite one identified omission concerning a later investigative report.
Held
- Discharge. Applying the principles stated in Tugushev v Orlov [2019] EWHC 2031 (Comm) and OJSC Ank Yugraneft v Sibir Energy plc [2008] EWHC 2614 (Ch), the court found one failure of disclosure or fair presentation: the claimants had not specifically drawn attention to the later Kroll 2014 Report. The omission was isolated, innocent and not central to the earlier decision. Even assuming the later report displaced adverse parts of the earlier report, the other evidence supported the relief. The freezing order was therefore not discharged.
- Good arguable case. The court adopted the three-limb approach explained in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10 and Goldman Sachs International v Novo Banco SA [2018] UKSC 34: a plausible evidential basis was required; the court should take a reliable view of disputed facts where possible; and, where reliable assessment was unavailable, a plausible contested basis was sufficient.
- The evidence established a strong, and at least good arguable, case that the funds represented the proceeds of a major international fraud. The UAE proceedings did not determine fraud and did not prevent that inference at the interim stage. The claimants also had a good arguable case in relation to proprietary claims, shadow directorship and fiduciary duties under the Companies Act 2006, claims under sections 212, 213 and 423 of the Insolvency Act 1986, and unlawful means conspiracy. The court did not finally determine the disputed legal issues.
- A liability to third parties could constitute recoverable loss. The claims were not limited to the amount of proofs of debt already submitted by particular consortium banks. Their potential maximum value was the total amount of funds said to have passed through the claimant companies.
- The requirements for a freezing order were satisfied: good arguable case, real risk of dissipation, assets within or outside the jurisdiction, and justice and convenience. The order was continued to trial at its existing value. The defendants’ discharge applications were dismissed and the claimants’ continuation application was allowed.
The court’s approach to earlier authorities
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Appellate history
This was a first-instance inter partes hearing. A worldwide freezing order was made without notice on 27 May 2022 and continued by consent on 10 June 2022. The present court dismissed the discharge applications and ordered continuation of the order to trial.
Key cases cited
27 authorities cited.
- Goldman Sachs International v Novo Banco SA [2018] UKSC 34
- Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80
- Holland v The Commissioners for Her Majesty’s Revenue and Customs and another [2010] UKSC 51
- OBG Limited and others (Appellants) v. Allan and others (Respondents) Douglas and another and others (Appellants) v. Hello! Limited and others (Respondents) Mainstream Properties Limited (Appellants) v. Young and others and another (Respondents) [2007] UKHL 21
- Westdeutsche Landesbank Girozentrale v Islington London Borough Council (Kleinwort Benson Ltd v Sandwell Borough Council) [1996] AC 669
- Lakatamia Shipping Company Ltd v Morimoto [2019] EWCA Civ 2203
- Kaefer Aislamientos SA De CV v AMS Drilling Mexico SA De CV & Ors [2019] EWCA Civ 10
- Kazakhstan Kagazy Plc & Ors v Arip [2014] EWCA Civ 381
- Finurba Corporate Finance Ltd v Sipp SA & Anor [2011] EWCA Civ 465
- Montrose Investment Ltd. v Orion Nominees Ltd. & Ors [2004] EWCA Civ 1032
- Morphitis v Leonardo Bernasconi Pasqualino Monti Nicholas Bennett & Co (a firm) [2003] EWCA Civ 289
- PJSC BANK “FINANCE AND CREDIT” & Anor v KOSTYANTIN VALENTYNOVICH ZHEVAGO & Ors [2021] EWHC 2522 (Ch)
- DBI Innovations (UK) Ltd v The May Fair Avenue General Trading LLC & Ors [2019] EWHC 2235 (QB)
- Tugushev v Orlov & Ors (No. 2) [2019] EWHC 2031 (Comm)
- Cunningham v Ellis & Ors [2018] EWHC 3188 (Comm)
- Holyoake & Anor v Candy & Ors [2016] EWHC 970 (Ch)
- Metropolitan Housing Trust Ltd v Taylor & Anor [2015] EWHC 2897 (Ch)
- Vivendi SA Centenary Holdings Iii Ltd v Richards & Ors [2013] EWHC 3006 (Ch)
- Millhouse Capital UK Ltd & Anor v Sibir Energy Plc & Ors [2008] EWHC 2614 (Ch)
- Shepherd Homes Ltd v Encia Remediation Ltd [2007] EWHC 1710 (TCC)
- Shalson & Ors v Russo & Ors [2003] EWHC 1637 (Ch)
- Bracken Partners Ltd v Gutteridge & Ors [2003] EWHC 1064 (Ch)
- Montrose Investments Ltd v Orion Nominees Ltd [2003] EWHC 2100 (Ch)
- Secretary of State for Trade and Industry v Deverell [2001] Ch 340
- NINEMIA MARITIME CORPORATION v. TRAVE SCHIFFAHRTSGESELLSCHAFT m.b.H. UND CO. K.G. (THE "NIEDERSACHSEN") [1983] 2 Lloyd's Rep 600
- Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (Government of the Republic of Indonesia intervening) (Pertamina) [1978] QB 644
- Twinsectra v Yardley
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Cases citing this case
7 later cases · 3 positive · 4 negative
Most senior citing decisions:
- Isabel Dos Santos v Unitel S.A. [2024] EWCA Civ 1109 disapproved
- Cancrie Investments Limited v Zulfiqur Al Tanveer Haider [2024] EWHC 1876 (Comm) followed
- Kieran Gallahue & Ors v Akhilesh Shailendra Tripathi & Anor [2024] EWHC 1740 (Ch) disapproved
- Ethan Thomas Wragg & Ors v Opel Automobile GmbH & Ors [2024] EWHC 1138 (KB)
- Unitel SA v Unitel International Holdings BV & Anor [2023] EWHC 3231 (Comm)
- Ziyavudin Magomedov & Ors v TPG Group Holdings (SBS) LP & Ors [2023] EWHC 3134 (Comm)
- Ethan Thomas Wragg & Ors v Opel Automobile GmbH & Ors [2023] EWHC 2632 (KB)
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