Isabel Dos Santos v Unitel S.A.
[2024] EWCA Civ 1109
Advanced Multi-Technology for Medical Industry & Ors v Uniserve Ltd
22 August 2023
[2023] EWHC 2147 (Ch)
High Court
A company (Uniserve) got a court order to freeze another company's (Maxitrac's) assets. Maxitrac tried to get the freeze lifted, arguing that Uniserve's case was weak and they hadn't been entirely honest with the court initially. The judge said Uniserve's case was strong enough to keep the freeze, even though they hadn't been perfectly upfront, and Maxitrac was too slow in asking for the freeze to be lifted.
Key Facts
- •Uniserve sued for breach of contract by Claimants (Supply Contract and Commission Contract).
- •Uniserve brought a Part 20 claim against Applicants (Maxitrac and Dr. Stead) for breach of their contract with Uniserve (Maxitrac Contract).
- •Worldwide freezing order granted against Applicants.
- •Applicants sought to discharge the freezing order.
- •Applicants argued lack of good arguable case and breach of full and frank disclosure.
- •Uniserve argued the Applicants' application was unduly delayed.
Legal Principles
Good arguable case test for freezing orders requires a "plausible evidential basis" for the claim.
Lakatamia Shipping Co Ltd v Toshiko Morimoto [2019] EWCA Civ 2203 at [38]
Freezing orders can be granted in respect of contingent claims.
Kazakhstan Kagazy plc v Zhunus [2016] EWCA Civ 1036 at [27]
The court must assess the plaintiff's chances of success at trial when considering a freezing order.
The Niedersachsen [1983] 2 Lloyd’s LR 600
Duty of full and frank disclosure requires disclosure of all defences to the claim, whether already raised or open to the defendant.
Gee on Commercial Injunctions (7th Ed, 2022) at 12-033
A stronger case must be shown for a freezing order than for other injunctive relief.
Gee at 12-032
The applicant must identify the prospective judgment and basis for recovery against the defendant.
Fourie v Le Roux [2007] UKHL 1
An application to vary or discharge a freezing order is a complete rehearing.
Gee at 24-021
Act of acceptance of repudiation requires no particular form.
Vitol SA v Norelf Ltd [1996] AC 800 at 810-811
Outcomes
Application to discharge the freezing order refused.
Uniserve had a good arguable case against the Applicants, despite some weaknesses in the Claimants' case against Uniserve. While there was a breach of the duty of full and frank disclosure, it was not sufficient to discharge the order given the risk of dissipation and the limited advantage gained by Uniserve.
Freezing order continued on its current terms.
The risk of dissipation remained real, and discharging the order would be disproportionate.
Applicants' delay in applying to discharge the freezing order was not justified.
The Applicants had ample opportunity to apply for an extension and failed to do so without good reason.