Privy Council restatement of the law on freezing and other interim injunctions

In a recent judgment, the Privy Council has delivered a “ground-breaking exposition of the law of injunctions” (in the words of the Master of the Rolls), including a restatement of the test for freezing injunctions. Although the analysis is technically obiter dicta, it will be highly influential on any English or other common law court exercising a general power to grant injunctions on the basis of what is just and convenient: Broad Idea International v Convoy Collateral Ltd and others; Convoy Collateral Ltd v Cho Kwai Chee [2021] UKPC 24.

Importantly, the Privy Council concludes that the general equitable injunctive power includes a power to make a freezing order where the sole purpose is to aid enforcement in foreign proceedings - contrary to the position established by the House of Lords’ decision in Siskina v Distos Cia Naviera SA [1979] AC 210. This will have limited impact in England, where there is a specific statutory power to grant injunctive relief in support of foreign proceedings (s.25 Civil Jurisdiction and Judgments Act 1982), but may be significant in other common law jurisdictions which have no such statutory power.

More broadly, the Privy Council’s judgment may facilitate a future expansion of the scope of freezing and other injunctive relief in both England and other common law jurisdictions. The majority judgment emphasises the need for the law in this area to be able to adapt to meet changing commercial practices. In particular, its exposition of the rationale underlying freezing orders and other enforcement-focused injunctions is intended to provide a foundation for the future development of such remedies as required, unshackled from principles developed in the different context of traditional ‘orthodox’ interim injunctions. It is not difficult to envisage it being relied upon in a number of areas where the law is currently being asked to respond to fundamental changes in commercial and financial practices, such as cryptocurrency and blockchain commerce.

For more information, see this post on our Civil Fraud and Asset Tracing Notes blog.