Key Facts
- •Ms dos Santos, daughter of the former Angolan president, founded Unitel.
- •Unitel made loans to UIH, owned by Ms dos Santos, which defaulted.
- •Unitel sought to join Ms dos Santos to the claim and obtain a Worldwide Freezing Order (WFO).
- •The High Court granted the WFO, and Ms dos Santos appealed.
- •The appeal concerns the "good arguable case" test for freezing injunctions and the costs order.
Legal Principles
Test for granting a freezing injunction: (1) good arguable case on the merits; (2) real risk of dissipation of assets; (3) just and convenient.
Bright J [2023] EWHC 3231 (Comm)
"Good arguable case" in freezing injunctions: more than barely capable of serious argument, but not necessarily >50% chance of success (The Niedersachsen test).
Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft GmbH [1983] 2 Lloyd’s Rep 600
Three-limb test from Brownlie for jurisdictional gateways: (i) a good arguable case; (ii) a reliable conclusion on that point; (iii) a plausible evidential basis if (ii) can’t be decided.
Brownlie v Four Seasons Holdings Inc [2017] UKSC 80; Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10
Costs in interim injunctions: usually reserved unless special factors exist. Freezing injunctions may differ due to the merits assessment and the provisional nature of the relief.
Bright J costs judgment
Outcomes
Appeal dismissed; The Niedersachsen test for "good arguable case" affirmed.
The Court of Appeal found the Niedersachsen test, a long-standing and consistently applied standard, to be the appropriate test for freezing injunctions. The three-limb test from Brownlie, applicable to jurisdictional gateways, was deemed inappropriate for freezing injunctions due to differences in context and application.
Costs order upheld; Ms dos Santos to pay Unitel's costs.
The Court found that the judge correctly exercised his discretion in ordering Ms dos Santos to pay costs. The application was made on notice, and she fought the application vigorously on all points. Unlike interim injunctions based on the balance of convenience, freezing injunctions serve a distinct purpose (to preserve assets for potential future enforcement of a judgment), meaning that the outcome of the underlying claim doesn't necessarily invalidate the initial grant of the injunction.