Civil Litigation SGS 10 - Freezing injunction, search orders and privilege

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billsykes
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206344
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Civil Litigation SGS 10 - Freezing injunction, search orders and privilege
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2013-03-11 10:07:03
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Civil Litigation
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Civil Litigation
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  1. Harold is owed money by Tim, but has recently discovered that Tim may be about to leave the country, taking his assets with him. Harold wishes to apply for a freezing injunction against Tim. Which ONE of the following is WRONG?

    [A] Harold must have an extremely strong prima facie case on the merits.

    [B] Harold must have a cause of action justiciable in England and Wales.

    [C] The assets, against which Harold could seek a freezing injunction, could include money, shares, motor vehicles, ships and paintings if owned by Tim.

    [D] There must be a real risk that Tim may dispose of or dissipate assets before judgment can be enforced.
    [A] Harold must have an extremely strong prima facie case on the merits.

    [[A] is WRONG and is therefore the CORRECT answer. This is not a factor taken into consideration when applying for a freezing injunction. See A Practical Approach to Civil Procedure by Stuart Sime 15th edition (‘Sime’) at 36.08].
  2. Which ONE of the following is it WRONG to state as an undertaking that Harold will have to give to the court?

    [A] An undertaking in damages. 

    [B] To serve on Tim a copy of the witness statement used in support of the application. 

    [C] To pay the reasonable costs and expenses incurred by third parties in complying with the order. 

    [D] To indemnify any third party in respect of losses incurred in complying with the order.
    [B] To serve on Tim a copy of the witness statement used in support of the application.

    [[B] is WRONG and is therefore the CORRECT answer. In an application for a freezing injunction, affidavit evidence must be used. See Practice Direction 25A paragraph 3.1 in White Book 2012]
  3. Assume that Harold obtains a freezing injunction against Tim, but Tim is unhappy that the injunction does not allow him enough money for living expenses. Which ONE of the following would be the CORRECT advice to Tim?

    [A] He should apply for discharge of the injunction.

    [B] He should apply for variation of the injunction.

    [C] He should appeal to the Court of Appeal against the granting of the injunction.

    [D] There is nothing that he can do, as he is bound by the terms of the injunction until trial.
    [B] He should apply for variation of the injunction.

    [[B] is CORRECT. He should apply to vary the freezing injunction. See the example of a freezing injunction annexed to Practice Direction 25A and note paragraphs 11 and 13 in this and Sime at 36.50].
  4. Which ONE of the following is the CORRECT merits test on an application for a search order?

    [A] The applicant must show an extremely strong prima facie case on the merits.

    [B] The applicant must show a good arguable case.

    [C] The applicant must show a real prospect of success.

    [D] The applicant must show a serious issue to be tried.
    [A] The applicant must show an extremely strong prima facie case on the merits.

    [[A] is CORRECT. See the principles established in the case of Anton Piller KG v Manufacturing Processes Ltd [1975] CH 55. See Sime at 37.07]
  5. Which ONE of the following is WRONG in respect of search orders?

    [A] Only High court judges and any other judge duly authorised may grant search orders.

    [B] The supervising solicitor must have familiarity with the workings of search orders. 

    [C] The privilege against self-incrimination can only be invoked in passing off and intellectual property cases. 

    [D] A usual undertaking by the applicant is to not, without the court’s permission, use the items seized for any purposes other than the present claim.
    [C] The privilege against self-incrimination can only be invoked in passing off and intellectual property cases.

    [[C] is WRONG and is therefore the CORRECT answer. See section 72 Senior Courts Act 1981. Also, please note Practice Direction 25A paragraph 7.9(1)]
  6. In which of the following case(s) is it CORRECT to consider Sam could rely on the privilege against self-incrimination to refuse to answer questions?

    (i) In care proceedings in respect of his child, where Sam is worried that answering questions may expose him to criminal proceedings for assault.

    (ii) In a civil claim against Sam and his wife where Sam is worried that answering questions may expose his wife to criminal proceedings.

    (iii) In a civil claim against Sam for the return of property taken by him in breach of trust, where Sam is worried that answering questions may expose him to criminal proceedings for theft.

    (iv) In a civil claim by a shop against Sam for passing off, where Sam is worried that answering questions may expose him to criminal proceedings for theft.

    [A] (i) and (ii)

    [B] (ii)

    [C] (iii) and (iv)

    [D] None of the above
    B] (ii)

    [[B] is CORRECT. See Section 14 Civil Evidence Act 1968 and Practice Direction 25A paragraph 7.9 (1), (2) and (3) inclusive in White Book 2012 listing the statutory limitations to the privilege against self incrimination. See Blunt v Park Lane Hotel Ltd [1942] 2 KB 253]
  7. Which of the following statements is/are WRONG?

    (i) Rectification is an equitable remedy in misrepresentation claims.

    (ii) To claim specific performance it must be proved that damages are not an adequate remedy.

    (iii) It will be a bar to the remedy of recission for misrepresentation if the Claimant affirms the contract

    (iv) The test of foreseeability of damage applies in damages for fraudulent misrepresentation (deceit).

    Please select ONE of the following:

    [A] (i) only

    [B] (ii) and (iv)

    [C] (i) and (iv)

    [D] (i), (iii) and (iv)
    [C] (i) and (iv)

    [[C] is WRONG (i.e. both options are wrong) and therefore the CORRECT answer].

    Option (i) this is wrong because rectification is an equitable remedy in claims for mistake.
  8. What is a freezing injunction?
    A freezing injunction is an order restraining a party from removing from the jurisdiction assets located there, or restraining a party from dealing with assets whether located within the jurisdiction or not
  9. What is the basis for applying for a freezing injunction?
    The basis for the application is that there is a serious risk that the respondent will remove his assets from the jurisdiction before judgment can be enforced
  10. What are the principles laid down and applied by the courts for granting freezing injunctions?
    1. A cause of action justicable in England and Wales

    2. A good arguable case

    3. The defendant having assets within the jurisdiction

    4. A real risk that the defendant may dissipate those assets before judgment can be enforced
  11. What kind of undertaking is the court likely to require an applicant to give for granting a freezing injunction?
    If the court later finds that this order has caused loss to the respondent, and decides that he should be compensated for that loss, the applicant will comply with any order the court may make.
  12. What is the procedure for applying for a freezing injunction and what is the minimum amount of time the court needs?
    (Roughly the same as any other without notice application)

    • Claim form (Issue and serve in person on respondent as soon as is practicable)
    • Application Notice (+fee)
    • Evidence (Affidavit)
    • Draft order
    • Skeleton

    Must be delivered to the court at least 2 hours before hearing
  13. A what was a freezing injunction formerly called?
    A Mareva injunction
  14. Can a freezing injunction be sought before proceedings have been issued or even after trial?
    YES!
  15. What is a search order?
    A search order is a form of interim mandatory injunction. It requires a defendant to allow the claimant's representatives to enter his premises and to search for, copy and remove documents or material. Search orders are also referred to as "search and seizure orders" and "Anton Piller orders".

    A search order is probably the most draconian order the court can make.

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