Issue 6
Mishcon Injunctions
March 2011
FREEZING ORDERS
Assets held on trust or as nominee caught by freezer
The Court of Appeal clarified that the words ‘his assets’ contained in the
Commercial Court Guide standard form freezing order include a
Respondent's assets held as trustee or nominee for a third party. The key
requirement was for the Respondent to disclose his assets whether he 'is
interested in them legally, beneficially or otherwise'. The Respondent operated
a corporate nominee services group which was alleged to have dishonestly
assisted in a fraud.
JSC BTA Bank v Solodchenko [2010] EWCA 1436, 23 February 2011
Defendants: ignore ancillary disclosure order at your peril
A Kazakh bank obtained freezing and ancillary disclosure orders in support
of its English fraud claim against its former officers and their affiliates. The
Respondents failed to make disclosure within the stipulated timeframe, and
applied to set aside the freezer on jurisdictional grounds. The High Court
held that the disclosure order must be complied with irrespective of the
jurisdictional challenge and so issued an ‘unless order’. The possibility that
disclosure might prejudice the Respondents if the freezer was set aside was
outweighed by the dissipation risk and need to effectively police the freezer.
To view the judgment from the bailii website, please click on the link below:
JSC BTA Bank v Ablyazov [2010] EWHC 2219 (QB), 24 August 2010
Billion dollar receivership justified where freezer protection insufficient
The Court of Appeal upheld the granting of an order, in support of a
freezing injunction, placing the Respondent’s assets (alleged to exceed a
billion US dollars) under the control of a receiver. This extreme and
intrusive remedy was justified because of the measurable risk that the
Respondent would deal with his assets in breach of the freezer as his initial
disclosure was inadequate, his assets were held in an opaque manner
making it difficult to trace, and there was evidence of share dealings in
breach.
JSC BTA Bank v Ablyazov [2010] EWCA Civ 1141, 19 October 2010
EXPEDITED TRIAL ORDERS
Speedy trial ordered in favour of interim injunction
New owners of a freight-consolidation company applied for an injunction
restraining the former director and vendor from carrying on a similar
business in Costa Rica. Although agreeing there were serious issues to be
tried, the High Court found the director’s new business to be limited in
scope and evidence of misuse of confidential information. The injunction
was refused and an expedited trial, which would minimise any damage that
could not otherwise be compensated, ordered instead.
To view the judgment from the bailii website, please click on the link below:
OTS Logistics Belgium NV and another v Clarke and another [2010] EWHC 3202 (QB), 6 December 2010
Alleged patent infringer permitted to join market
The High Court declined to grant an injunction to a drugs manufacturer
which alleged that a rival generic manufacturer was infringing the patent in a
narcolepsy drug. Whilst the Applicant’s case on the merits ‘just about
cleared’ the threshold, the generic manufacturer, if injuncted, might lose a
unique market opportunity of being the first generic to the market, and
there was no yardstick to measure such a loss. Put another way, the
generic manufacturer was likely to suffer more under the ‘balance of
convenience’ test, and so an expedited trial was more appropriate.
To view the judgment from the bailii website, please click on the link below:
Cephalon Inc and other companies v Orchid Europe Ltd and another company [2010] EWHC 2945 (Pat), 19
November 2010
ANTI-SUIT INJUNCTIONS
Anti-suit injunction halts vexatious Russian proceedings
The Commercial Court continued an anti-suit injunction restraining a
Russian defendant from pursuing its ‘weak’ and ‘vexatious & oppressive’ claim
before the Russian courts. England was found to be the natural forum for
numerous reasons, primarily as the parties must have contemplated English
law as applying to their contractual relations.
To view the judgment from the bailii website, please click on the link below:
Star Reefers Pool Inc v JFC Group Co Ltd [2010] EWHC 3003 (Comm), 23 November 2010
GAGGING ORDERS
Blackmail factor tips judicial balancing act
The High Court granted a without notice restraining injunction to prevent
the Respondent from disseminating photographs and video images where
the Applicant feared blackmail. The balance between the right to privacy
and the right to freedom of expression favoured the granting of the
injunction and preserving anonymity of the parties in this case.
To view the judgment from the bailii website, please click on the link below:
Poi v Person Known as “Lina” [2011] EWHC 25 (QB), 13 January 2011
Victim of blackmail granted injunction and anonymity
The High Court continued a restraining injunction against an alleged
extortionist who it was claimed had threatened the Applicant with the
revelation of stolen private and confidential information. The Applicant had
not waived his rights to privacy nor was there a public interest justification
for publication.
To view the judgment from the bailii website, please click on the link below:
KJH v HGF [2010] All ER (D) 271 (Nov), 24 November 2010
Judge agrees to anonymity until trial
The Applicant had obtained an injunction restraining a newspaper from
publishing certain information. At the return date, the parties agreed to
continue the injunction until trial maintaining anonymity. This consent order
required Court consideration since it appeared to derogate from the
principle of open justice. The High Court found there was insufficient
public interest in identifying the Applicant such that might justify any
curtailment to his and his family’s rights to respect for their private lives.
To view the judgment from the bailii website, please click on the link below:
XJA v News Group Newspaper Ltd [2010] EWHC 3174 (QB), 3 December 2010
Court of Appeal’s ‘Take That’ to super-injunction
The Court of Appeal overturned the super-injunction limb of a restraining
injunction granted to a former member of the band “Take That”. The High
Court’s injunction had prevented the Defendant (i) publishing sensitive
information, and (ii) disclosing the existence of the injunction itself. The
Court of Appeal confirmed the first limb as correctly ordered, but found
there was no justification for continued anonymity of the parties or
restricting disclosure of the existence of the injunction itself.
To view the judgment from the bailii website, please click on the link below:
Ntuli v Donald [2010] EWCA Civ 1276, 16 November 2010
Gagging order continued
The High Court continued a restraining order halting the publication of
details of a celebrity’s alleged extra-marital relationship. The story had the
potential to infringe the celebrity’s rights to privacy which was likely to
outweigh the public interest in the story and the publisher’s right to
freedom of expression.
To view the judgment from the bailii website, please click on the link below:
CDE v MGN Ltd [2010] EWHC 3308 (QB), 16 December 2010
MISCELLANEOUS
BP's joint venture partner stops new business with Russian oil giant
The High Court granted an injunction to restrain BP’s Russian joint
venturers, AAR, restraining BP from completing or continuing to negotiate
its proposed share swap with Russian oil giant, Rosneft. AAR claimed the
proposed Rosneft alliance breached BP’s obligation to give it, as joint
venturer, first rights of refusal on new business opportunities in Russia.
Tim Webb and Tom Bawden, The Guardian, 2 February 2011
Low-cost airline forces airport to stay open past closing time
The High Court continued until trial an injunction against respondent
Blackpool Airport preventing it from refusing to service flights by applicant
airline, Jet2, scheduled outside its promulgated opening hours. There was a
strongly arguable case that the Airport’s recent change in no longer
servicing such flights involved a breach of contract, and the Airport would
not suffer prejudice irremediable if successful at the expedited trial.
To view the judgment from the bailii website, please click on the link below:
Jet2.com Ltd v Blackpool Airport Ltd [2010] EWHC 3166 (Comm), 3 December 2010
Strike on DLR halted
The High Court granted an injunction preventing a 48-hour strike on the
Docklands Light Railway. The strike was found to be not lawful as the ballot
notices were defective in omitting the explanations required by law.
BBC website, 19 January 2011
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