CL-2022-000467 - [2025] EWHC 1920 (Comm)

That law is, of course, very well known and entails the Court considering the following matters: first, whether the applicant has a good arguable case on the merits; secondly, whether there is a risk that a judgment may not be satisfied because of unjustified dealing with assets; thirdly, whether there are assets held by or on behalf of the respondent to the application within the geographical scope of the proposed injunction (I note here that the geographical scope sought in relation to the relief here is worldwide); and, lastly, whether it is just and convenient in all the circumstances to grant the relief sought.

The application is made, as will already be apparent, at a post-judgment stage: after, that is, both the liability judgment and the quantum judgment. It follows, and this was not disputed by VietJet, that the good arguable case requirement is necessarily here satisfied; see, for completeness, Great Station Properties SA v UMS Holding Ltd[2017] EWHC 3330 (Comm) at [56] per Teare J.

It is also the case, necessarily, as that same authority indicates at [63], that because the application is being made post-judgment, this is relevant to the fourth limb of the test, namely whether it is just and convenient in all the circumstances to grant the relief sought.

In this case, in relation to the present application, the only debate is as to that fourth aspect and, more particularly before that fourth aspect falls to be considered, as to the second aspect, namely whether there is a sufficient risk of dissipation to warrant the grant of the relief sought.

It is common ground as to that limb of the four-fold test that what is there required is an objective assessment of the risk that a judgment may not be satisfied because of a risk of unjustified dealing with assets: see Lakatamia Shipping Co Ltd v Morimoto [2019] EWCA Civ 2203 at [34(1)], where Haddon-Cave LJ adopted and repeated certain observations made by Popplewell J (as he then was) in Fundo Soberano de Angola v dos Santos [2018] EWHC 2199 (Comm) at [86(2)].

It is also common ground that the risk of dissipation must be demonstrated with what has been described as “solid evidence”, as opposed to mere inference or generalised assertion: see Lakatamia at [34(2)] per Haddon-Cave LJ. However, the applicant need only establish that the risk is real.

The applicant does not need to establish the risk on the balance of probabilities, nor that the risk is more likely than not to exist: see Les Ambassadeurs Club Ltd v Yu [2021] EWCA Civ 1310, [2022] 4 WLR 1 at [27] and [37] per Andrews LJ.

It is also accepted by both parties that, in making the assessment as to risk of dissipation, the Court must look at the totality or the accumulation of evidence: see Lakatamia at [34(7)] per Haddon-Cave LJ. The same point was made by Gloster LJ in Holyoake v Candy [2017] EWCA Civ 92, [2018] Ch 297 at [64], where it was observed, in effect, that even if factors do not individually justify such an assessment, they might nonetheless do so cumulatively (or “collectively”, as Gloster LJ put it).

It is FWA’s position in relation to this application that here the risk of dissipation is clearly established. I will come on in a moment to deal with the matters relied upon in that context. However, VietJet’s position is to the contrary, namely that the risk of dissipation is not clearly established and, on that basis, the submission is made that the relief sought should be refused. In this respect, whilst I have been referred to a number of authorities and, indeed, have already made some reference to them myself thus far, I have found it particularly instructive and useful to consider the observations made by Andrews LJ in Les Ambassadeurs. I refer in this respect, first, to [14], where she said this:

“The purpose of a freezing injunction is to ensure that a judgment in the applicant’s favour will not go unsatisfied by reason of assets that would otherwise be available to satisfy it being dealt with in a manner that will make them unavailable by the time the judgment comes to be enforced. It is designed to protect against the frustration of the process of the court by depriving the claimant of the fruits of any judgment obtained in his favour. It is not intended as a safeguard against insolvency, nor as a means of providing security for a claim, however strong that claim may be and however large a sum of money may be involved. Nor is it just another standard means of securing enforcement of a judgment in favour of the applicant, like a charging order or third party debt order. It is a potent weapon in the armoury available for dealing with those individuals and companies who may seek to make themselves judgment-proof.”

Then, at [16], Andrews LJ said this:

“In view of the drastic interference with a person’s right to do as they please with their own property that a freezing injunction entails, (quite apart from the reputational damage that it may cause), the courts must remain vigilant to ensure that such orders will only be granted in cases in which the evidence suffices to establish that there is a real risk of the judgment going unsatisfied by reason of what Gloster LJ in Holyoake v Candy [2017] EWCA Civ 92; [2018] Ch 297 (‘Holyoake’) elegantly termed ‘unjustified dissipation’, and where it is just and convenient to make the order.”

Andrews LJ continued at [17] in these terms:

“It makes no difference in terms of the risk that must be established whether the freezing injunction is sought before or after judgment, though post-judgment injunctions may be easier in practice to obtain. The policy of the law is to enforce judgments, and for that reason it may be right that when a judgment creditor has satisfied the court there is a real risk of dissipation, it would require particularly strong grounds for refusing to grant him a freezing order on the basis of justice and convenience, as Teare J suggested in Great Station Properties SA v UMS Holding Ltd [2017] EWHC 3330 (Comm) at [63].”

Andrews LJ, then, said this at [18]:

“However, I respectfully disagree with the suggestion made by Leggatt J in Distributori Automatici Italia SpA v Holford General Trading Co Ltd [1985] 1 WLR 1066, 1073, and cited with apparent approval by Teare J in that same paragraph, that it may be easier to infer a risk of dissipation in a post-judgment case. An adverse judgment may provide more of an incentive to the defendant to put his assets beyond the reach of the claimant than a mere claim, but that tells one nothing about whether the evidence establishes a real risk that he may do it.”

Andrews LJ continued with a particularly important paragraph, namely [19]:

“In this context, there is an important distinction to be drawn between a defendant who can pay but refuses to pay his debts until he is forced to do so, and a defendant who is so determined not to pay that he would take active steps to frustrate the recovery of sums due to his creditors by transferring or concealing assets or by some other form of unjustified dissipation. In order to avoid the undesirable situation in which, as Gloster LJ put it in Holyoake at para 58 ‘the nuclear remedy of a freezing order would … become a commonplace threat’, there must be cogent evidence from which it can at least be inferred that the defendant falls into the latter category. The distinction is one which the Judge had at the forefront of his mind when he refused to make the freezing order in the present case.”