Isabel Dos Santos v Unitel S.A.
[2024] EWCA Civ 1109
Nederlandse Financierings-maatschappij Voor Ontwikkelingslanden N.V. v Société Bengaz S.A.
21 July 2023
[2023] EWHC 1948 (Comm)
High Court
A bank got a court order freezing another company's money. The judge let the other company have more time to fight back and also made the bank give extra security, even though the bank is super rich, because there's a chance the freezing order could hurt someone else.
Key Facts
- •Without notice injunctions, including a freezing injunction, were granted on July 5, 2023, by Mr. Justice Bright.
- •The first defendant, Société Bengaz S.A., attended court represented by its chairman, who is not an English lawyer.
- •The first defendant argued for an adjournment due to the volume of documents (in English) and lack of English legal advice.
- •The claimant, Nederlandse Financierings-maatschappij Voor Ontwikkelingslanden N.V., disputed the first defendant's claims, particularly regarding lack of funds and timely document provision.
- •The second defendant raised concerns about the risk of loss due to the injunctions, citing past orders in Benin and Togo.
- •The court considered the need for fortification of the cross-undertaking provided by the claimant.
- •The claimant, a substantial Dutch bank, argued its assets rendered fortification unnecessary.
- •The court considered the Commercial Court Guide and relevant case law regarding assets within the jurisdiction.
Legal Principles
Fortification of cross-undertaking may be required if the applicant for an interim remedy is unable to show sufficient assets within the jurisdiction of the court.
Commercial Court Guide and Tarasov v Nassif (29 June 1994, unreported)
There is no requirement to prove losses on the balance of probabilities at the stage of considering fortification of a cross-undertaking.
Court ruling
Outcomes
Injunctions continued for both defendants.
Balancing the need for fairness to the first defendant with the considerable costs incurred and lack of a substantive defense.
First defendant granted six weeks to apply to discharge the injunctions without showing a change of circumstances.
To allow the first defendant time to obtain legal representation and prepare a response, while mitigating potential prejudice to the claimant.
Claimant ordered to fortify its cross-undertaking by £300,000.
Acknowledging a realistic risk of loss for the second defendant due to the injunction, despite the claimant's substantial assets outside the UK jurisdiction. The court emphasized the need to maintain the balance of convenience.
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