[2019] EWCA Civ 219
Court of Appeal considers whether payments in the ordinary course of business should be allowed in a post-judgment freezing order
It is now settled law that a freezing order can be granted post-judgment in aid of execution, even if no freezing order was obtained pre-judgment. As with pre-judgment freezing orders, the purpose is to prevent dissipation of assets. In this case, the appellant appealed the decision at first instance to remove the standard exception in a freezing order which allows the respondent to continue to deal with and dispose of assets "in the ordinary and proper course of business". There was no dispute that the judge had had jurisdiction to remove the exception, and nor was there any challenge to his factual findings.
The Court of Appeal accepted that it makes a difference whether a freezing order is pre or post judgment, given that pre-judgment it has not yet been proven that the claimant's claim will succeed, and there is a policy of law weighing heavily in favour of the enforcement of judgments. However, there is no presumption in favour of refusing the exception of "ordinary course of business" payments in a post-judgment freezing order. Equally, refusal of the exception is not a remedy of last resort. Instead, the appropriateness or otherwise of including the exception "should be treated as a question turning on all the facts in the individual case".
On the facts of this case, there had been ample justification for removing the exception: "this was not a case of "can't pay"; this was a case of a most emphatic "won't pay"", every effort having been made by the appellant to resist enforcement.
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.
