UK: Limits On The Ability To Grant Ancillary Relief

Last Updated: 5 August 2008

Banco Nacional de Comercio Exterior SNC v Empresa de Telecommunicationes de Cuba SA (English Court of Appeal, July 2007) provides an important illustration of the limits on the ability of the English court to grant freezing orders in aid of litigation in other countries. The judgment debtor was a Cuban telecoms company with receivables in England and elsewhere. An Italian judgment was registered in England pursuant to the Council Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Brussels Regulation") and a domestic freezing order was made. That freezing order was sought to preserve sums due or to become due to the respondent from several UK mobile telephone companies whose customers connected to the respondent's network.

Subsequently, a worldwide freezing order was also granted. The respondent challenged the continuation of the worldwide freezing order, arguing amongst other things that it was not open to the court under the Brussels Regulation to make an order other than in respect of assets situated in England or within the territory of Member States of the EC.

At first instance, the Court held that there was no basis for restricting freezing orders to domestic assets and the worldwide freezing order was continued. It was held that Article 47 of the Brussels Regulation contained an unrestricted and discrete code for the granting of provisional and protective measures in the context of enforcement of judgments. That Article provides in relevant part that "when a judgment must be recognised in accordance with [the Brussels Regulation], nothing shall prevent [the judgment creditor] from availing himself of provisional, including protective, measures in accordance with the law of the Member State requested..."

The respondent appealed against the grant of the worldwide freezing order, submitting that the provisions of Article 47 were limited to the enforcement of the judgment against its assets in England and provided no basis for granting worldwide relief since such relief would extend to assets which would not be subject to enforcement in England. This submission was accepted by the Court of Appeal.

On the facts of the case, the Court of Appeal regarded it as inexpedient to grant a worldwide freezing order as (1) there was no connecting link at all between England and the subject matter of the measure sought (ie worldwide relief directed only at assets outside England), as assets within the jurisdiction were protected by the separate domestic order; (2) it is not the policy of the Italian courts to grant worldwide freezing orders; and (3) there was a danger that an English worldwide freezing order would give rise to disharmony or confusion and/or a risk of conflict, inconsistency or overlap with orders in other jurisdictions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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