English freezing orders in support of foreign proceedings: the need for careful drafting and monitoring

A recent Court of Appeal decision highlights a number of important practical issues for claimants regarding freezing injunctions issued by the English courts in aid of foreign proceedings, under section 25 of the Civil Jurisdiction and Judgments Act 1982: GFH Capital Ltd v Haigh [2024] EWCA Civ 65.

Even where the foreign court has issued a worldwide freezing order, a supporting injunction from the English court can be particularly valuable for its binding effect when served on non-party banks and other institutions subject to the English jurisdiction.

However, in the present case, a majority of the Court of Appeal held that an order which froze a foreign defendant's English assets "until the disposal of the Claim or further order" had been automatically discharged when the foreign court delivered a judgment on the substantive claim, some years previously.

The decision reinforces the importance of clear and unambiguous drafting of such orders, particularly where they deviate from the usual wording for freezing orders in the relevant court (which may often be the case for orders in support of foreign proceedings). The potential for ambiguity is starkly demonstrated here by the fact that an interpretation which one Court of Appeal judge considered would be "very odd" was considered by the majority to be "plainly intended".

The decision also highlights that:

• Certainty is particularly important as to when a freezing order will come to an end. Both the defendant and third parties such as banks need to be able to identify a clear point at which an order will cease to operate.

• Claimants are expected to monitor actively the continued effectiveness of any freezing order they obtain and must be astute to apply for a continuation or a fresh order where that becomes necessary - even if that occurs unexpectedly.

• The court will not allow freezing orders to continue in limbo on an extended basis. While every order will be construed on its particular terms, a freezing order expressed to operate until a claim is "disposed of" (or "until judgment", as is common in the Commercial Court) is likely to be interpreted as ceasing to operate as soon as there is a judgment on the substantive claim - rather than when all avenues for appeal are exhausted. As the minority judgment here noted, where the substantive claim is in foreign proceedings that may well require a claimant to make an urgent application to the English court in response to developments of which it may not have advance warning.

Background

The claimant was a company incorporated in the Dubai International Financial Centre (DIFC). It commenced proceedings in the DIFC courts in 2014 alleging embezzlement by defendant, its former deputy CEO.   The DIFC court granted a worldwide freezing order against the defendant.

Shortly afterward, the claimant also applied to the English Commercial Court (under section 25 of the Civil Jurisdiction and Judgments Act 1982, by way of a Part 8 claim) for a freezing order prohibiting the defendant from removing or dealing with any of his assets in England and Wales up to USD 5 million. Although this would cover the same assets as those already frozen under the worldwide freezing order, the Commercial Court granted it on the basis that it reinforced the worldwide  order - in particular, by binding banks holding accounts in England and Wales to refuse to act on the defendant's instructions for the removal of assets.

The restraining provisions in the English freezing order were expressed to operate "(u)ntil the disposal of the Claim or further order of the court…"

In 2018, the DIFC court delivered judgment in favour of the claimant and ordered the defendant to pay substantial damages. The claimant subsequently obtained from the English court summary judgment on a substantive enforcement and tracing claim brought here.

In 2021, the defendant applied to set aside the English freezing order. He argued that "until the disposal of the Claim" referred to the DIFC claim, and that that claim had been disposed of when the DIFC court delivered its judgment in 2018.  The High Court accepted that argument. The claimant appealed, on the grounds that:

1. "the Claim" referred to the Part 8 claim, which had not yet been disposed of. In addition to relying on the wording of the order, the claimant argued that it would not make sense for an English court to make an order that would expire automatically upon the occurrence of an event in foreign proceedings over which the English court had no control and of which the parties might not have advance warning; and

2. even if "the Claim" did mean the DIFC claim, that claim had also not yet been "disposed of", because the defendant had expressed an intention to seek permission to appeal the first judgment out of time.

Decision

The Court of Appeal dismissed the appeal, by a majority. Phillips LJ gave the lead judgment, with which Peter Jackson LJ agreed. Arnold LJ gave a dissenting judgment, which would have allowed the appeal on ground 1 above (but agreed with the majority on ground 2).

Ground 1: meaning of "the Claim"

Philips LJ set out the general principles governing the interpretation of judicial orders. Citing Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6 and Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co [2017] EWCA 1525, he noted that the construction of an order is a single coherent process, taking into account the wording of the order, the circumstances in which the court made it and the reasons for making it. However, in the case of injunctions prohibiting conduct, breach of which could be punishable as contempt, the terms were to be restrictively construed.

Applying those principles, Philips LJ agreed with the first instance judge that "what was plainly intended", and what "any sensible recipient of the order" would understand by the wording was that "the Claim" was a defined term for the DIFC proceedings mentioned immediately above it in the order.  In particular:

1. The wording of the order departed significantly from the standard wording used in freezing orders, which usually provide that an injunction will continue "until the return date or further order…", "until after judgment or further order..." or "until further order...". Whilst there was no explanation for the departure, the obvious reason was that the injunction was not sought pending judgment in the Commercial Court proceedings themselves, but pending judgment the DIFC proceedings.
2. Since the English proceedings were expressly stated to be in support of the DIFC Claim, it made sense for the reference to "the Claim" to be to the main claim, ie the DIFC claim.

3. It would not make sense for "[u]ntil the disposal of the Claim" to refer to the Part 8 Claim. Not only is that not recognised terminology for such an injunction application, the grant of an injunction is the final relief sought by way of an application under section 25.

4. There was nothing in the wording of the order that would alter that interpretation, including the fact that the order provided for "costs in the Claim". That expression is not commonly used in English proceedings (as distinct from "costs in the case"), but would make sense in the context of the DIFC proceedings, where the costs could appropriately follow the event in the substantive proceedings - to which the Part 8 claim was subordinate.

5. There was no real force to the claimant's objection that the disposal of the DIFC claim was an event outside the parties' control and knowledge. The position was no different to where an injunction is expressed to last until trial or judgment in (or "disposal of") English proceedings. A claimant must be astute to apply for continuation or a fresh freezing order upon such event, including where the court unexpectedly granted summary judgment or struck out a claim:

"The courts require a claimant availing itself of the "nuclear weapons" of civil litigation [ie freezing injunctions] to monitor actively their use and effect and to be astute to apply to the court to maintain their effectiveness and fairness."

Dissenting on this issue, Arnold LJ considered that the "Claim" referred to the English proceedings. His reasons included:

1. Although ancillary to the DIFC claim, the English proceedings were a procedurally distinct claim in a different court and country. The most natural interpretation of the order was that "the Claim" referred to the claim within which the order was made, which was the distinct English claim.

2. If the wording had been intended to refer to the DIFC claim, it would have been more likely to have been spelt out.

3. "It would be very odd" to read the relevant phrase as meaning "Until the disposal of the Claim [by the DIFC] or further order of the [English] court" – rather than referring to alternative acts by the same court.

4. The reference to "disposal" of the Claim, rather than "judgment" or "determination", also pointed to the English proceedings.  Those proceedings were not at an end upon the granting of the freezing order: there was a variety of applications that could subsequently be made, such as to vary or discharge the order, to dispute the allowance for living expenses and/or legal advice, or enforce the cross-undertaking in damages. "Until the disposal" contemplated a hearing (not a trial of a substantive claim) at which any such issues not already dealt with, and the order as to costs, can be determined - thus disposing of the claim.

5. Contrary to Phillips LJ's view, "costs in the claim" is a commonly used alternative to "costs in the case" in England. As it is not possible for an English court to empower a foreign court to make such costs orders in respect of English proceedings, this clearly meant that "the Claim" referred to the English proceedings.

That interpretation was, Arnold LJ considered, also supported by practical considerations, including that it would safeguard enforcement of the DIFC judgment against the English assets, whereas the majority's interpretation (that the freezing order was discharged the moment judgment was delivered in the DIFC) would potentially jeopardise it. In his view, the majority's expectation that claimants should be prepared for that event placed an undue burden on a party to make a very urgent application to the English court - particularly given the possibility of a foreign judgment being delivered in writing without advance notice, and out of court hours in a different time zone.

Ground 2: Had the DIFC claim been "disposed of" by the judgment?

Philips LJ emphasised the importance of certainty in the context of freezing orders which have their main effect by operating on third parties, such as banks. Certainty requires that such an order comes to an end immediately on the occurrence of the specified event, whether it is trial, judgment or "disposal".  The fact that there may be further proceedings, or an appeal, does not alter that effect: the claimant can apply for a continuation of the injunction but the existing injunction must come to an end. The injunction cannot "continue in some form of 'limbo' until appeal rights are exhausted".

It followed that the court below was right to hold that the injunction ceased to have effect as soon as the judgment was granted in the DIFC.

Even if that analysis was wrong, and "disposal" is only after all appeal rights are exhausted, that undoubtedly occurred in this case. Final judgment was granted in July 2018 and, when the defendant failed to apply within time for permission to appeal, all appeal rights were exhausted at that point.  Further, although he had apparently expressed an intention to seek to appeal out of time, there was no extant application and no basis to believe that such an appeal would even have been considered.

Both the other Lords Justice agreed with Phillips LJ's discussion of this ground.