Judge considers whether freezing order covered assets held by company of which the respondent was the sole director and shareholder
The claimant obtained a freezing order against the defendant which provided that it covered all the defendant's assets "whether or not they are in his own name and whether or not they are solely or jointly owned and whether the respondent is interested in them legally, beneficially or otherwise. For the purpose of this order the Respondent's assets include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Respondent is to be regarded as having such power if a third party (which shall include a body corporate) holds or controls the asset in accordance with his direct or indirect instructions". This wording is known as "the Commercial Court words" and is intended to extend the operation of the freezing order to assets held by the respondent as a trustee or nominee for a third party in which the respondent has no beneficial interest. In this case, the defendant was the sole director and shareholder of the company which held the relevant asset.
Prior caselaw has held that this extended definition is not intended to include the assets of another person, even if controlled by the respondent (see the Court of Appeal's decision in Lakatamia Shipping v Su). However, the claimant argued that that position had been impliedly overturned in the Supreme Court decision of JSC BTA Bank v Ablyazov .
Peter MacDonald Eggers QC held that there was no rule of law prohibiting a High Court judge, as opposed to the Court of Appeal, from deciding that a Court of Appeal decision had been impliedly overruled by a later Supreme Court decision. However, he went on to find that Ablyazov had not overruled Lakatamia. Nevertheless, he held that there was an inconsistency between the two decisions and concluded that "the extended definition does apply to assets over which the respondent has control but which the respondent does not legally or beneficially own".
That said, he also noted that "the mere fact that the respondent was the sole shareholder and director of a company did not mean that the respondent had "control" over the company's assets for the purposes of the extended definition, because any decision taken by the respondent as to the disposition of or dealing with the company's assets was not taken by the respondent in his or her own right, but was taken in his or her capacity as an organ or agent of the company." Accordingly, the freezing order did not apply here to the assets of the companies in which the defendant had a direct or indirect shareholding.
Things might be different, though, where the defendant's conduct "may have the effect of diminishing the value of the respondent's shareholding in the company, and as that shareholding is an asset which is captured by the freezing order, such conduct may be enjoined by the freezing order", but only if that conduct was outside of the ordinary course of business of the company.
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