Think carefully about your freezing order...

Think carefully about your freezing order...

The Court of Appeal on 25th July dismissed an appeal by the Claimant bank arguing that post freezing order loan facilities taken out by the Defendant were his own assets under the order (in the case of JSC BTA Bank v Ablyazov and others [2013] EWCA Civ 928).

Two of the loan agreements were with W and the other two with F, both BVI incorporated companies which the claimant asserted were owned by the defendant. The loan agreements enabled the defendant to direct that payments be made directly to third parties, which he did in respect of the entire amount under each loan agreement.

The claimant applied for a declaration that, in the event that the loan agreements were valid, the defendant's rights under them were his assets for the purposes of the order and that any drawings under them could only lawfully be made pursuant to the relevant para of the order. The court disagreed and said that choses in action were not the terms used in the order did not naturally convey the exercise of a right to borrow, that was to either receive or cause a third party to receive money in exchange for the generation of a debt. It could not be said that the wording in the order had identified all choses in action as falling within the scope of the term 'asset' with as much precision as had been reasonably practicable. At least the Court of Appeal did grant the Claimant the disclosure order which had not been dealt with by the court below, but which it will be very interesting to see (if we find out) what that reveals in due course.

Freezing orders are not much protection against a determined Defendant and offer no proprietary right in assets to protect against claims of other creditors. Monitoring the behaviours of Defendants too closely can lead courts to consider Claimant behaviour overly draconian but what else is a Claimant to do? The freezing order needs to be carefully thought out and the evidence as to the assets to be restrained given in detail if the claimant is not to be in a stable door situation looking at the horse galloping into the distance.

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About the author:

Frances gained her LLB (Hons) at Kings’ College, London University in 1983. She then attended Chester College of Law to take what were then the Solicitors’ Final Examinations. She has been at Moon Beever since 1984 where she trained, qualifying in 1986, and a partner since 1988 becoming Managing Partner in 2000. She is also a founder partner of ShawnCoulson, an international association, of which Moon Beever is the London office. She is Head of Insolvency and Business Recovery at Moon Beever running a substantial team of insolvency specialists. She undertakes most areas of personal and corporate insolvency, specialising in contentious insolvency especially cases involving fraud, as well as provisional liquidations and injunctive work generally.

She is Chairman of the Appeal Committee at ACCA and a member of the Insolvency Law Evaluation Panel at the Insolvency Service, and CBI Insolvency Panel as well as a member of Insol, and the IBA and, veering towards the personal, of the NFU, and the Carlton Club.

Frances is a regular speaker in the UK and abroad on insolvency and practice management.

Frances was formerly Chairman of the SPG Committee of R3, the Insolvency trade body representing 97% of licensed insolvency practitioners. She is President of R3 for 2011-2012, and remains a member of its R3 Policy Group.

She is interested in all things equestrian as are her three daughters and her husband, and spends her free time (such as it is) with her family and other animals, riding and trying to improve her strokes at Real Tennis.