HT-2022-000254 - [2025] EWHC 1581 (TCC)

On 23 January 2025, I handed down judgment in this matter in relation to an issue which had arisen from the freezing injunction made on 15 August 2022 and which remained and remains in place. Following correspondence with the court, the parties agreed the terms of an Order which varied the injunction to make clear that it did not prohibit the dealing with and disposal of the Properties (as defined in the Order) by the Receivers and which provided for any issues as to costs to be the subject of written submissions. Written submissions were subsequently made.

The detailed submissions of the parties can be briefly summarised. The applicants’ position is simple and is that they were the successful party on the application: (i) the applicants’ case was that the freezing injunction did not prohibit their dealing with the Properties; (ii) the judgment of the court was in favour of that position; (iii) the variation of the Order simply clarifies that position. Costs should follow the event and the respondents’ should pay the applicants’ costs. It is further the applicants’ submission that those costs should be assessed on the indemnity basis.

The respondents say now that the application was entirely avoidable and a waste of court time. That submission is founded on the decision in Taylor v Van Dutch Marine Holdings Ltd [2017] EWHC 636 (Ch)which is cited as authority for the proposition that a creditor with security over an asset which is the subject of a freezing order can enforce the security without having to make an application to the court to discharge or vary the freezing order. It is recognised that that case was not cited to the court at all but the respondents submit that the applicants ought to have been aware of the position in law and that the making of the application was unnecessary.

In any event, the respondents’ position is that was not their case that the injunction prohibited the applicants dealing with the Properties. Rather they were in a position of not knowing whether Click St Andrews might have a beneficial interest in the Properties. That was through no fault of their own and was to a large extent the consequence of the failure of Click St Andrews to comply with orders of the Court to provide information. The respondents, therefore, said that they were not able to confirm that the applicants could deal with the Properties and they did not consider that they could consent in light of the court’s order. It was, they said, for the applicants to judge whether to take the risk that their actions would amount to a breach of the injunction. The respondents made a reasonable proposal to ring fence part of the proceeds of sale, rather than prevent the sale. Taking account of all aspects of the parties conduct there should be no order as to costs or, put another way, that each party should bear its own costs.