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Equitable Remedies II (Background (Freezing order/search order - specific…

- - - - Profits made in breach of fiduciary duties
        
        Williams v Barton (1927)
        
        Boardman v Phipps (1967)
        
        A-G for Hong Kong v Reid (1994)
      - Profits made by a stranger in the court of assisting in a breach of trust or fiduciary duty, or from beneficial receipt of proceeds - Novoship (UK) Ltd v Nikitin (2014)
      - Profits made from infringement of intellectual property rights, breach of confidence (her Majesty's AG v Guardian Newspapers Ltd (No 2) (1988)), or breach or contract (AG v Blake (2000))
- - - - Usually awarded prior to judgement
        
        "ancillary to a substantive pecuniary claim for debt or damages; it is designed to prevent the judgement against a defendant for a sum of money being a mere brutum fulmen" - per Lord Diplock, Siskina v Distos Compania Naveira SA (1979)
        
        MAY be awarded after judgement
        
        Babanaft International Co SA v Bassatne (1990)
        
        r25.2(1)(b) Civil Procedure Rules
        
        USUALLY without notice
        
        In a "without notice" application, claimant should fairly state all the points that could be made by the defendant against his claim - Third Chandirs Shipping Corporation v Unimarine SA (1979)
        
        Fourie v le Roux (2007) - confirmed that without notice application would not normally be granted if the substantive proceedings had not yet been granted, or if an undertaking to issue such proceedings was not provided with the injunction application
      - What is an asset?
        
        Aeroplanes - Allen v Jambo Holdings Ltd (1980)
        
        Ships - The Rena K (1979)
        
        Machinery - Rasu Maritima SA v Perusahaan Pertambangan Minyak Dan Gas Bumi Negara (1978)
        
        Jewellery/objets d'art/choses in action - CBS United Kingdom v Lambert (1983)
      - Guidelines for obtaining a freezing order - governed by Senior Courts Act 1981 s37 - relief may be granted where "it appears to the court to be just and convenient to do so" - guidelines in Derby & Co v Weldon
        
        Good arguable case - Ninemia Maritime Corporation v Trave (1983)
        
        "not necessarily 50%+ chance of success"
        
        Grounds for believing D has relevant assets within jurisdiction - or without where extra-territorial order is sought
        
        Risk of dissipation
        
        Objective assessment - Derby & Co Ltd v Weldon (1990)
        
        Evidence of misappropriation - JSC BTA Bank v Ablyazov (2009)
        
        Customs and Excise Commissioners v Anchor Food Ltd (1999) - Neuberger J said need a good arguably case for risk
      - "Extra-territorial" effect
        
        Outside the jurisdiction
        
        "Unduly oppressive" - Re BCCI (1994)
        
        C must show insufficient assets in jurisdiction - Derby & Co Ltd v Weldon
      - Does not give a "proprietary interest"
        
        Iraqi Ministry of Defence v Arcepny Shipping Co SA, The Angel Bell (1981)
        
        No priority on insolvency - Cretanor Maritime Co Ltd v Irish Marine Management Ltd, The Cretan Harmony (1978)
      - Undertaking
        
        Claimant must make a full and frank disclosure of all material matters
        
        Will be required to give an undertaking in damages, with security if appropriate
        
        "Price paid for the injunction" - Practice Direction - Interim Injunctions PD 25A paras 5.1, 5.1A
        
        As ancillary to order, court will often grant order requiring disclosure of defendant's assets and their whereabouts
        
        Defendant may apply for injunction to be discharged at any time
        
        Third parties - informed - Z Ltd v A-Z and AA-LL (1982)
      - Allowances
        
        Living expenses - Z Ltd v A-Z and AA-LL
        
        Business expenses - Normid Housing Association Ltd v Ralphs and Mansell and Assicurazioni Generali SpA (No 2) (1989)
- - - - Inspect documents or other articles - Yousef v Salama (1980)
      - Take custody or documents or other articles - Crest Homes plc v Marks (1987)
    - - Without notice
      - Characterised by secrecy - essence is surprise - Columbia Picture Industries v Robinson (1987)
    - - Extremely strong prima facie case
      - Damage, potential or actual, must be very serious for the applicant
      - Clear evidence D has incriminating documents in their possession AND there is a real possibility of destruction - Anton Piller LG v Manufacturing Processes Ltd (1976)
        
        "Clear and compelling evidence" - fishing expedition to find out what defendant has will not be allowed
    - - No further than the minimum extent necessary to achieve the purpose for which it is granted
      - Detailed record of the materials should be made by the solicitor - Columbia Pictures Inc v Robinson (1986) - aggravated damages awarded for seizing items not covered by order
      - No material should be taken unless it is clearly covered by the terms of the order
      - Between 9.30 and 17.30
      - Defendant should be present
      - If a female defendant is alone, should be a female solicitor - Universal Thermosensors Ltd v Hibben (1992)
    - - Obey the order
      - Refuse to comply - contempt of court
      - Urgent application - order set aside
        
        Judge who made order
        
        Unsuccessful application = contempt of court
        
        Rank Film Ltd v Video Information Centre (1982) - House of Lords held that a search order should not require a defendant to disclose information which would incriminate him - right removed as regards proceedings for technical or commercial information or other intellectual property rights by Senior Courts Act 1981, s72 - Coogan v News Group Newspapers Ltd (2012)
    - - Chappell v UK (1989) - European Court of Human Rights held that the aim to protect the rights of others was legitimate and met requirements of Article 8 (right to respect for private and family life) in accordance with the law - necessary safeguards existed to ensure action only taken where necessary in a democratic society
        
        Remains to be seen whether Article 6 (right to a fair trial) is breached by application for search order
      - "They potentially involve serious inroads on principles which bulk large in rhetoric of English liberty, such as the presumption of innocence, the right not to be condemned unheard, protection against arbitrary searches and seizures, the sanctity of the home" - per Hoffmann J, Lock International plc v Beswick (1989)
        
        Referred to need for "proportionality between the perceived threat to the plaintiff's rights and the remedy granted"