Isabel Dos Santos v Unitel S.A.
[2024] EWCA Civ 1109
MEX Group Worldwide Limited v Stewart Owen Ford & Ors
8 August 2024
[2024] EWCA Civ 959
Court of Appeal
A company tried to freeze another company's assets worldwide. A judge said no because there wasn't enough proof they'd hide their money and because the first company didn't tell the judge everything they should have. An appeals court agreed.
Key Facts
- •Mex Group Worldwide Ltd (claimant) appealed a decision to set aside a worldwide freezing order against 4th, 9th, and 10th defendants (respondents).
- •The freezing order was granted under section 25 of the Civil Jurisdiction and Judgments Act 1982 (CJJA) in aid of Scottish proceedings alleging conspiracy.
- •Respondents have no assets or presence in England, Wales, or Scotland.
- •The judge set aside the order due to insufficient risk of asset dissipation, inexpediency given lack of connection to England and Wales, and failure of full and frank disclosure.
- •The claimant challenged these conclusions and sought to introduce new evidence from Scottish proceedings.
- •The Scottish court found a good arguable case for the claimant's conspiracy claim.
- •The appeal involved the admissibility of the Scottish court's judgment and documents obtained via a Scottish search order.
- •The appeal also involved the claimant's alleged failure of full and frank disclosure.
Legal Principles
Approach to section 25 CJJA applications: (1) would relief be warranted if proceedings were in England? (2) is it inexpedient to grant relief due to lack of jurisdiction?
Refco Inc v Eastern Trading Co [1999] 1 Lloyd’s Rep 159, 170-1
Test for a good arguable case for a freezing order: more than barely capable of serious argument, but not necessarily a better than 50% chance of success.
The Niedersachsen [1983] 2 Lloyd’s Rep 600, 605
Admissibility of new evidence on appeal: (1) couldn't be obtained with reasonable diligence, (2) would likely influence the result, (3) is presumably believable.
Ladd v Marshall [1954] 1 WLR 1489; Al Sadeq v Dechert LLP [2024] EWCA Civ 28
Findings of fact from other proceedings are generally inadmissible, preserving trial fairness.
Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587; Rogers v Hoyle [2014] EWCA Civ 257
Risk of dissipation for freezing orders requires showing a real risk that a judgment would be unsatisfied due to unjustified asset dissipation.
Lakatamia Shipping Co Ltd v Morimoto [2019] EWCA Civ 2203
Full and frank disclosure is a high duty for without notice injunctions, requiring disclosure of material facts and fair presentation.
Tugushev v Orlov & Ors [2019] EWHC 2031 (Comm)
Expediency under section 25 CJJA considers whether lack of jurisdiction makes granting relief inexpedient; requires a connection to the UK jurisdiction, generally requiring domicile, residence, or assets in the UK.
Various cases including Crédit Suisse Fides Trust SA v Cuoghi [1998] QB 818; Motorola Credit Corpn v Uzan (No. 2) [2003] EWCA Civ 752; ICICI Bank UK Plc v Diminico NV [2014] 3124
Outcomes
Appeal dismissed.
The claimant failed to show sufficient risk of asset dissipation, the court found it inexpedient to grant the order due to lack of connection with England and Wales, and the claimant materially failed in its duty of full and frank disclosure.