1. Are freezing orders (or their equivalent referred to below) available in civil legal proceedings in this jurisdiction and what is their effect?
Yes. The respondent is prohibited from dealing with the assets (either within the jurisdiction or worldwide) referred to in the freezing order until a specified time (for example, a further hearing, judgment or payment) or further order of the Court.
2. Are other interim orders commonly made in conjunction with a freezing (or equivalent) order?
Yes. The Court typically also requires the respondent to provide disclosure in an affidavit of the nature, value and location of their or its assets.
3. Briefly what is the relevant legal test?
- The applicant has a good arguable case in the underlying substantive claim or prospective claim;
- the respondent has assets, which may be within or (in the case of a worldwide freezing order) outside Guernsey (although the Court will generally exercise greater caution in granting relief in respect of assets overseas unless there is clear connection with Guernsey);
- there is a real risk of unjustified dissipation (for example, for the purposes of frustrating or impeding the satisfaction of a judgment or award); and
- it is just and convenient to grant the freezing order.
4. Briefly what is the process for obtaining a freezing (or equivalent) order?
The applicant makes an application to the Court, in particular setting out in an affidavit the reasons for the application and the basis on which the relevant test is met. An application can be made on or without notice to the respondent. Applications for Guernsey freezing orders are typically made in private in the first instance. In cases where there is an urgent need for relief, it is almost always possible to obtain a hearing before the appropriate judge within 24 hours. The paperwork which must be prepared in advance is an application notice with a draft form of the order sought; the evidence upon which the applicant relies (in affidavit form); and a skeleton argument. Where an application is made without notice, the applicant has a duty of full and frank disclosure and there will be a later return hearing at which the respondent can challenge the order (assuming it is made).
5. Does the applicant have to provide any form of security or commit to compensation if its claim is ultimately unsuccessful and any freezing (or equivalent) order granted causes loss and damage to the respondent?
Yes. The applicant must provide a cross-undertaking in damages to the respondent (which can in certain circumstances be ordered to be backed by security (which it could be required to be paid into the Court)).
6. Can it be sought against third parties?
Yes, a third party to the underlying proceedings or prospective proceedings may be made a party to a freezing order where there is good reason to suppose that its assets are in fact the assets of the defendant in the underlying litigation or will be available to the defendant to meet a judgment or arbitral award. Equally a third party which is not a party to the freezing order (for example, a financial institution holding the respondent’s assets) which is notified of it is still required to ensure that it does not knowingly assist the respondent in breaching the terms of the freezing order. Third parties are typically notified by hand delivery of a copy of the order, or by sending a copy by email. These methods are commonly used for reasons of expediency but, as there are no specific rules which govern notification to third parties, other methods like a phone call are possible too. Although the order is addressed to the respondent, it also binds third parties. Anyone who is on notice of the order and assists or permits the respondent to breach it will risk being held in contempt of Court. The exception to this is third parties who are outside Guernsey. A worldwide freezing order will generally only affect third parties outside Guernsey if it has been declared enforceable by their local Court.
7. What assets are covered by a freezing (or equivalent) order?
Any tangible or intangible assets provided they are not perishable, whether within the jurisdiction (a domestic freezing order) or outside (a worldwide freezing order).
8. Can a freezing (or equivalent) order be made in support of substantive proceedings abroad?
Yes, subject to a statutory test for exceptional circumstances. Accordingly any judge considering freezing orders in Guernsey in support of proceedings in other jurisdictions must exercise caution. Nevertheless, such orders are regularly obtained and indeed commonplace.
9. Can a freezing (or equivalent) order be made in support of arbitration proceedings or awards?
Yes.
10. At what stage of proceedings can a freezing (or equivalent) order be sought?
At any stage, including prior to commencing the claim (although the Court will expect the applicant to issue its claim promptly) or following judgment to assist with enforcement.
11. Are there typically any exceptions to the general prohibition on the respondent’s use of assets subject to a freezing (or equivalent) order?
Yes. The order will generally provide that the respondent may deal with their assets:
- below a specified value;
- in the ordinary and proper course of business;
- for ordinary living expenses; or
- for legal expenses.
12. What happens after a freezing (or equivalent) order is granted?
The applicant will typically notify third parties (such as banks) of the freezing order when they might hold the respondent’s assets. Assuming the original order was obtained without notice (as it often will have been), there will be a return hearing, which date is stated on the face of the order, at which the respondent may challenge the order. At this point the original order will usually either be set aside, extended or replaced with a Court-sanctioned undertaking (which has broadly the same effect as a freezing order) until trial.
13. Who pays the costs of the application for a freezing (or equivalent) order?
Either the applicant or the respondent may be ordered to pay for the costs of obtaining the freezing order, which is usually decided at the final determination of the underlying litigation.
14. What protections are there typically in a freezing (or equivalent) order for third parties to such orders?
- A third party is not prevented from exercising any rights of set-off arising prior to its notification of the freezing order.
- A third party does not need to enquire as to the application of any money withdrawn by the respondent if the withdrawal appears to be permitted by the freezing order.
- A freezing order only affects third parties outside of the jurisdiction in certain circumstances.
- As regards assets outside of the jurisdiction, a freezing order does not prevent a third party from complying with (a) what it reasonably believes to be its obligations under the law of the country where the assets are located or the law of any contract between itself and the respondent or (b) any orders of the Courts of the country where the assets are located.
- (v) Applicants undertake to pay the reasonable costs of any third party which have been incurred as a result of the order, and to compensate them for any loss caused by it.
15. What are the consequences of breach of a freezing (or equivalent) order?
A respondent who disobeys a freezing order may be held in contempt of Court and may be imprisoned, fined or have their assets seized. A third party may only be in contempt of Court where they knowingly help or permit the respondent to breach the terms of the order.
16. Does a third party notified of (but not a party to) a freezing (or equivalent) order owe a duty of care to the applicant (meaning it can be liable to the applicant for non-compliance)?
No, but anyone who knows of the order and assists or permits the defendant to breach it will risk being held in contempt of Court.
17. Can a freezing (or equivalent) order be enforced abroad?
Yes, in principle, although subject to the laws of the relevant jurisdiction. However, this can only be sought with the permission of the Court and enforcement itself will be a matter of local law.
18. Can freezing (or equivalent) orders from overseas jurisdictions be enforced in this jurisdiction?
In general, Guernsey will not grant a free-standing freezing order in support of foreign order, or where there is no justiciable cause of action in Guernsey against a defendant which is amenable to the Court’s jurisdiction. However, the Court may grant a freezing order in support of Guernsey proceedings which are issued in conjunction with foreign proceedings; and it may continue the order even if the Guernsey proceedings are stayed in favour of the foreign proceedings, either because the Guernsey Court is not the most appropriate forum or because the claimant has no intention of pursuing its claim in Guernsey.
First published as part of Eversheds Sutherland‘s Global Guide to Freezing Orders, which features contributions from lawyers in 90 different jurisdictions, June 2024.
