Alexander Issac Hamilton v Mark Colin Barrow & Ors

A post-judgment freezing order requires an objectively established real risk that the judgment will not be met because assets may be unjustifiably dissipated. The risk must be supported by solid evidence and assessed separately against each respondent. Alleged dishonesty is insufficient unless it indicates a real likelihood of dissipation.

A transfer of assets between jointly liable spouses is not dissipation where it preserves the defendants’ overall wealth and does not put assets beyond the judgment creditor’s reach. The court may refuse relief where the judgment debt has been satisfied, costs are not yet payable, and the evidence does not establish the necessary risk.

The claimant obtained judgment after trial for damages arising from currency-club transactions. The damages were paid, but payment of interest and costs was stayed pending the defendants’ application for permission to appeal.

The claimant sought a post-judgment freezing order against the first and second defendants, relying principally on the sale of property in Grand Cayman and the subsequent acquisition of property in Portugal in the second defendant’s sole name. He also sought orders requiring the third defendant to explain the use of funds taken from the currency club.

The central issues were whether there was a real risk of unjustified dissipation and whether any further relief should be granted against the third defendant.

1. Freezing order principles. The claimant had to establish, objectively, a real risk that the costs judgment would not be met because of unjustified dissipation. Dissipation meant putting assets beyond the reach of a judgment creditor. The risk required solid evidence, had to be shown separately against each respondent, and was not established merely by showing an arguable case of dishonesty. The alleged dishonesty had to point to a likelihood of dissipation, while any properly arguable answers had to be considered.
2. First and second defendants. The Grand Cayman property had been sold and the Portuguese property acquired in the second defendant’s name, but the transaction preserved the defendants’ wealth and merely reallocated where it was held. Because both defendants were exposed to joint and several liability, the transaction did not put assets beyond the claimant’s reach. It was therefore not dissipation in the relevant sense. The court rejected the allegations concerning concealment, breach of undertakings, substantial dishonesty and trial misconduct. The freezing order and other relief were refused.
3. Third defendant. The damages liability had been satisfied, the time for payment of costs had not arrived, and the third defendant had provided evidence of his means and an explanation of how the funds had been spent. The claimant had no tracing claim or right to follow the sums. No order was made.
4. Alternative procedural point. If enforcement later proved difficult after the stay was lifted, the claimant might consider the information procedure under Civil Procedure Rules 1998, Part 71. The judge also observed that, if the merits decision were wrong, the earlier compromised application would have barred renewed relief because there had been no material change of circumstances; entry of judgment alone was not such a change.

The judgment describes a five-day trial before Mrs Justice May, following which judgment was handed down on 17 July 2023. The defendants’ application for permission to appeal was pending, and enforcement of the interest and costs orders remained stayed. This judgment determined the claimant’s subsequent application for post-judgment freezing and ancillary relief.