Gary Orritt considers recent judicial attitudes to granting and discharging freezing injunctions. Applicants must gather robust evidence for the without notice hearing, or face penal consequences later.
In an article about the use of Mareva injunctions, we summarised the thoughts of Lord Justice Popplewell as to whether these ‘nuclear weapons’ of litigation are now granted too readily, and whether reforms are necessary.
Two recent cases in the High Court illustrate the traps for applicants should they fail to properly comply with the exacting duty of full and frank disclosure when preparing their evidence. In other words, when seeking injunctions on a without notice basis, applicants must raise all the material points that the respondent may put forward if the respondent were present, to ensure an even-handed presentation of facts.
In the context of freezing injunctions, urgency is often paramount. But that does not circumvent the need to give a full and accurate account of the respondent’s likely position.
Failure to give the required level of disclosure will result in the court penalising the applicant. The penalty is often the significant step of discharging of the order, but there may also be cost sanctions.
Even in circumstances where the order would have been made if the relevant matters had been brought to the court’s attention, the order may be discharged for lack of disclosure. As Carr J (as she then was) said in Tugushev v Orlov & Ors (No.2) [2019] EWHC 2031, “this is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties”
Failure to highlight an arbitration clause
In Dr Zeyn Bharucha v Dr Riyaz Patel & Anor [2025] EWHC 3364 (Ch), Andrew de Mestre KC (sitting as a Deputy Judge) discharged a freezing order and proprietary injunction, for serious non-disclosure on behalf of the applicant.
The Judge helpfully analysed each of the nine matters of non-disclosure raised by the respondent, reaching a conclusion as to whether each was sufficiently serious as part of a well-constructed judgment.
A “very serious failure” was to not draw attention to the existence of an arbitration clause in the relevant contract, which would have resulted in the hearing starting “from a fundamentally different position”. It did not make a difference that this failure was not deliberate. Further, the applicant could not escape from the duty by asserting that “the same destination would have been reached in any event”.
On certain points, including the presentation of correspondence between the parties, the Judge disagreed that the Claimant had breached his duty. It was said that the Defendant’s complaints “go beyond what is expected of an applicant”. It was confirmed that the applicant’s duty of full and frank disclosure “does not prevent an applicant from making submissions” in their favour.
The Defendant was not spared from criticism, for his failure to “[set] out [the non-disclosure points] clearly and on a timely basis”. He had waited until the filing of his skeleton argument, resulting in an adjournment, but this did not ultimately impact the decision to discharge the order.
‘Misleading’ submissions
In another case, heard in court just four days later, HHJ Karen Walden-Smith had “no hesitation” in discharging a worldwide freezing order on the basis of the applicant’s failure to give full and frank disclosure.
In Hamza Lakhany v Danyaal Hasan [2025] EWHC 2269 (KB), there were multiple failings on the part of the Claimant. The Claimant had alleged that the Defendant had a valuable asset in the jurisdiction, which was the main focus of the ongoing dispute. The most important two related failings included that:
- The property which the Claimant sought to restrain was in fact a company asset, Further, LPA receivers had been appointed a number of years prior (information available publicly on Companies House). The property was not therefore under the control of either the defendant or his company. The court was unaware of these facts at the time that the order was granted, and there was therefore little basis for the “onerous and potentially oppressive” disclosure orders linked to the asset;
- It was alleged by the applicant to be “suspicious” that the Defendant had moved to Pakistan. However, the Defendant had been up-front about the move, and had given a forwarding address.
Strikingly, it appeared that, when granting an order, the court in the first hearing had proceeded on the basis that the Claimant was seeking an injunction against specific property, not a worldwide freezing order. The final order was “far wider” than the court intended to make.
It was not helped that the Claimant did not use the model form of a worldwide freezing order, which meant that certain key provisions were excluded such as (among other things); a return date, any exception for living expenses and for legal expenses.
A warning for applicants
Both cases cited from the comprehensive summary relating to material non-disclosure, first set out in the decision of Carr J in Tugushev v Orlov(1), and endorsed by Coulson LJ in Mex Group Worldwide Limited v Ford(2). Whilst presenting “material facts” at the time of a freezing order application did “not extend to a detailed analysis of every possible point which may arise”, an applicant did need to highlight “issues that were likely to arise and the possible difficulties in the claim”.
In Mex Group, Males LJ encouraged respondents to deploy a “degree of restraint and sense of proportion” when seeking discharges of orders, heavily criticising any attempt to present the court with “a long shopping list of alleged failures of disclosure” rather than the “few points which really matter”.
The Lakhany and Bharucha decisions appear to have been argued based on targeted criticisms, and the freezing orders were therefore rightly discharged.
These cases show that close scrutiny will be applied on the return date to ascertain whether or not it would be fair to continue the order for a freezing injunction. While delay can be fatal to an application for a freezing order, rushing the application before the necessary evidence is gathered may result in the order being discharged, and cost sanctions incurred by the applicant.
The above said, the continuation or otherwise of a freezing injunction should always be guided by the interests of justice. Recognising that complex cases will throw up more opportunities to allege non-disclosure, judges are encouraged “not [to] lose sight of the wood for the trees”(3). It is also necessary for the court to weigh up all relevant considerations which will include “the importance and the significance to the outcome of the application of matters not disclosed to the court”.(4) This ought to prevent respondents from alleging non-disclosure in respect of irrelevant facts which do not impact the claim.
Source
1. [2019] EWHC 2031
2. [2024] EWCA Civ 959
3. Derma Med limited & Anr v Dr Zack Ally & Ors [2024] EWCA Civ 175 [at 120], cited at paragraph 62 of Bharucha
4. Dar al Arkan Real Estate Development Company & Anor v Al Refai [2012] EWHC 3539 [at 149], cited at paragraph 64 of Bharucha
