MEX Group Worldwide Limited v Stewart Owen Ford & Ors

Under Civil Jurisdiction and Judgments Act 1982, section 25, a worldwide freezing order supporting proceedings elsewhere requires both satisfaction of the ordinary domestic requirements and that relief is not inexpedient despite the absence of ordinary English jurisdiction. A real connecting link with England and Wales will ordinarily be required where the respondent has no English presence or assets.

Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24 did not remove that statutory expediency requirement. Nor did withdrawal from the European Union. Material failures of full and frank disclosure at a without-notice hearing may justify discharge and refusal to renew an order, even where later evidence supports the merits and risk of dissipation.

Mex Group Worldwide Ltd, a Hong Kong company, brought Scottish proceedings alleging that the defendants had conspired to cause Mex Securities Sarl to repudiate a settlement and consent order concerning more than €36 million. It obtained a worldwide freezing order in England without notice under section 25 of the Civil Jurisdiction and Judgments Act 1982.

A Deputy High Court Judge set the order aside as against Mr Gollits, Von der Heydt & Co AG and Von der Heydt Invest SA. He held that there was no sufficient risk of dissipation, that relief was inexpedient because they had no connection with England and Wales, and that the claimant had breached its duty of full and frank disclosure: [2023] EWHC 3394 (KB).

The claimant appealed and sought to admit judgments and documents obtained in the Scottish proceedings. The central questions were whether the new material established the ordinary freezing-order requirements, whether section 25 permitted relief with no English connecting link, and whether the disclosure failures nevertheless required discharge.

1. Appeal dismissed. The court admitted the relevant new material. It showed a good arguable case and a real risk of unjustified dissipation by Mr Gollits and Von der Heydt & Co AG. Those conclusions would have warranted a worldwide freezing order if the substantive proceedings had been brought in England.

2. Section 25 requires a two-stage inquiry. The court must first ask whether the facts would justify the interim relief in domestic proceedings. It must then ask whether the absence of ordinary jurisdiction makes relief inexpedient. A view expressed at a without-notice hearing in the primary court carries no weight on the return-date issue. A cogent reasoned interlocutory judgment of the court seised of the merits may, however, be relevant.

3. The second stage was fatal. The respondents had neither assets nor any meaningful presence in England, Wales or Scotland. The established section 25 authorities require a real connecting link with England and Wales before the English court will ordinarily restrain foreign assets of respondents who are not subject to its ordinary in personam jurisdiction. Exceptionally weak links may suffice, but none existed here.

4. Convoy Collateral Ltd v Broad Idea International Ltd [2021] UKPC 24 removed the need for an applicant to have a domestic cause of action in some freezing-order cases. It did not remove the statutory expediency inquiry under section 25(2). The breadth of the general injunction power is subject to that restriction. Brexit likewise did not displace the connecting-link requirement, which was an English-law principle and not solely a consequence of EU law.

5. The court also upheld the independent disclosure ground. The claimant had materially failed to present the true position in the BVI litigation, the respondents’ participation in it and the availability of relief there, and the delay revealed by earlier K2 reports. It had also failed to disclose an assignment which raised a serious question whether it still had the cause of action. These omissions justified discharge and refusal to renew the order in the interests of justice.

6. Later evidence capable of strengthening the merits or dissipation case could not cure material failures in the original without-notice presentation. Allegations of non-disclosure should be confined to clear and important points; a lengthy indiscriminate list risks obscuring the matters which truly affect justice.

• Court of Appeal (Civil Division): The claimant’s appeal was dismissed. The court upheld the discharge and refusal to renew the worldwide freezing order.
• High Court of Justice, King’s Bench Division: Simon Tinkler, sitting as a Deputy High Court Judge, set aside the without-notice worldwide freezing order as against the relevant respondents: [2023] EWHC 3394 (KB).