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Urgent Injunctions: Can I apply to the court for a freezing order during Covid-19?

During the lockdown, many businesses have moved to online and remote working. Action Fraud reports daily on coronavirus-linked fraudulent activity including phishing and online hacking scams. As companies continue to suffer financially, now more than ever, parties require the assistance of the court should an urgent injunction be necessary.

During this current time of uncertainty during the lockdown, can an applicant still apply for an urgent injunction at the court? Our London Lawyers are based minutes from the High Court and can be deployed with speed as the client’s needs and case demands. However, is the court still open and can you apply remotely for an injunction? The answer is yes. You can still get an urgent injunction and the courts are still open for business.

We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense.

Are the courts open to hear an urgent injunction?

Yes. The Queen’s Bench Division, the Commercial Court, and the Interim Applications List (Chancery) all continue to hear applications for urgent injunctive relief throughout the coronavirus lockdown. 

The way in which the hearing will be conducted will depend upon the individual Judge. Hearings for urgent injunctive relief are currently being heard by telephone or via Skype for Business. We recently conducted a hearing via Skype for Business. The judge’s clerk sends a skype link in advance of the hearing and you click on it to access the hearing. There is no need to purchase Skype for Business, a free Skype account can be used.

Further information updated information can be found on the websites for the daily cause lists of the Queen’s Bench Division and the Business and Property Courts (Ch) 

Remote bundling during Covid-19

Any court hearing now will likely proceed remotely. As such, instructing solicitors should take care in preparing an e-bundle, as different considerations are required to hard copy bundling. An e-bundle:

  • must be a single PDF not exceeding 20mb in size;
  • must be numbered in ascending order regardless of whether multiple documents have been combined together (the original page numbers of the document will be ignored and just the bundle page number will be referred to)
  • Index pages and authorities must be numbered as part of the single PDF document (they are not to be skipped; they are part of the single PDF and must be numbered).
  • The default display view size of all pages must always be 100%.
  • Texts on all pages must be selectable to facilitate comments and highlights to be imposed on the texts
  • The bookmarks must be labelled indicating what document they are referring to (its best to have the same name or title as the actual document) and also display the relevant page numbers.
  • The resolution on the electronic bundle must be reduced to about 200 to 300 dpi to prevent delays whilst scrolling from one page to another.
  • The index page must be hyperlinked to the pages or documents it refers to.

What is an Injunction? 

An injunction is a Court order that will prohibit a party from taking a particular action which is called a prohibitory action; or may require them to take a particular action which is called a mandatory injunction. Usually the first step is to obtain an interim injunction which will usually be granted pending a further hearing or until a further hearing or until a full trial of the dispute. 

If a party breaches an injunction the party can be held in contempt of Court which in some circumstances may lead to imprisonment. 

What are the types of injunctions? 

The CPR have codified the court’s power to grant types of interim order in CPR 25.1(1). Such interim injunctive relief includes: 

  • Freezing injunctions – restricting someone from dealing with their assets;
  • Orders requiring a party to provide information about the location of property or assets, which may be sought to to support a freezing injunction or as a standalone order;
  • Search orders – to permit the search of a respondent;s property to preserve evidence and property; and/or
  • Orders requiring delivery up of property.

What is a freezing order?

A freezing order or freezing injunction (formerly known as a Mareva injunction) is an order that is used by a creditor who is concerned that a company may sell their assets and fail to pay the amount due to the creditor. The order can freeze almost any asset including: a company bank account, property, land or investment and shares.

What documents need to be filed electronically to get a freezing order?

The following documents should be completed which will be best prepared by a legal advisor to ensure the best chases in obtaining the freezing order:

  • Application Notice along with evidence in support if the application.
  • A draft Order – which will set out the terms for the freezing Order.
  • Ancillary Orders (only sometimes needed) – this may include an order for cross-examination, delivery of passport, or order for a company receiver.

If a freezing order is then granted at a without prejudice hearing it will usually be made for a specific amount of time and a return date will be fixed for a full hearing.

Following the granting or the order it should then promptly be served by the applicant on the respondent and any third parties known, or believed to hold assets of the respondent.

At the full hearing the court will determine whether the injunction should be continued, varied or discarded.

What are the consequences of a freezing injunction?

The granted freezing order will also be endorsed with a penal notice in case the respondent does not comply. If the respondent does not comply they will be in contepmt of court and therefore face a fine and/or imprisonment.

I am a victim of fraud, how do I get a freezing order?

The court will exercise its discretion to grant a freezing order and must only grant the order if it convenient.

The court must establish the following conditions to grant a freezing order:

  • The applicant must have a strong case. The applicant must establish that its case is capable of a serious argument.
  • There must be a substantive cause of action against the defendant
  • The applicant must demonstrate the risk of the asset being disposed of if the order is not put into place.
  • It must be ‘just and convenient’ to grant the order – it would cause unnecessary and disproportionate hardship to the defendant to grant the order.   

What must be proven to to freeze someone’s assets during Covid-19?

Case law states that the following six conditions must be met in order to grant a freezing order:

  • The applicant my have a cause of action, that is, an underlying legal or equitable right.
  • The English court must have jurisdiction.
  • The applicant must have a good arguable case.
  • The existence of assets.
  • There is a risk of dissipation.
  • The applicant must provide an undertaking in damages.

What must an applicant provide for a successful freezing order injunction appplication?

Full disclosure of all relevant information must be provided by the applicant including an undertaking in damages to compensate if it is then decided that the freezing order should not have been awarded. in some cases the applicant will also need to provide security when making an application for a freezing order.

It is important that in the disclosure the applicant provides all facts and information so that court is able to properly exercise it’s discretion. These facts include anything that could adversely affect the applicant’s own case; how long the dispute has been ongoing; and facts that the applicant or their advisors did not know but could have discovered if they made reasonable enquiries.

How is a freezing order enforced during Covid-19?

Freezing orders are generally enforced by committal proceedings for contempt of court. Committal proceedings may generally only be brought against a person who the order was original served on.

Committal proceeding are classified as civil proceedings in England and Wales, however the penalty may be a fine, seizure of assets or up to two years imprisonment. To commit a person for breach of injunction a deliberate or wilful breach of the order must be established beyond reasonable doubt, which is the criminal standard of proof.

How much does an injunction cost? 

The cost for an injunction is dependent on the circumstances and facts in the particular case. 

The level of costs will be affected by: 

  1. The urgency of the application;
  2. The number of witnesses involved in the matter; and
  3. Whether the matter is with or without notice. 

Specialist Injunction Solicitors in London

Our London Private Prosecution and Injunction Lawyers are proud of being able to mobilise with speed and act as tenaciously as the client’s needs and case demands. This is one of the reasons for the firms location adjacent to the Royal Courts of Justice in Central London. We have for example obtained an out of hours emergency worldwide freezing injunction for one of our clients in circumstances which required overnight preparation of affidavits and attendance upon a Judge at his private residence followed by immediate enforcement action and further attendance the next morning at the High Court.

We ensure that we provide the best possible outcome for our clients by conducting in depth investigation and research into the realistic prospects of a case before selecting the appropriate course of action in order to reduce time and expense.