Freezing injunctions are permitted without an underlying cause of action, rules Privy Council

On 4 October 2021, Privy Council handed down a landmark judgment in Convoy Collateral Ltd v Broad Idea International Ltd and Cho Kwai Chee [2021] UKPC 24. Lord Leggatt’s majority judgment[1] provides the first comprehensive legal foundation for freezing and interim injunctions, and removes many of the restrictions imposed on injunctions by previous cases.

Background

Convoy Collateral applied in the BVI courts for freezing injunctions in support of proceedings in Hong Kong, against the defendant in those proceedings, Dr Cho, a Hong Kong resident, and against a third-party BVI company, Broad Idea, controlled by Dr Cho. The injunction was granted by the judge but overturned by the Court of Appeal.

The issues on appeal were (i) whether the BVI rules of court permitted service out of a claim only for a freezing injunction and (ii) whether the court can grant an injunction to assist enforcement of a prospective foreign judgment.

On the facts, the Board found that the BVI court rules did not permit service out of the claim solely for a freezing injunction against Dr Cho (a non-BVI resident), following previous authority. However, where the court has personal jurisdiction over a defendant (such as over Broad Idea, a BVI company), it can grant an injunction to assist with the future enforcement of a foreign judgment. On this latter issue, the Board rejected dicta to the contrary in House of Lords decision in The Siskina [1979] AC 210.

These specific issues have long been settled in England by legislation,[2] and very recently by legislation in the BVI, which post-dates this case.[3]

The rationale for the freezing injunction

However, Lord Leggatt’s judgement went much further. It surveyed the entire history and development of the freezing injunction and discusses some recent innovations which fall outside traditional categories, such as third-party disclosure orders and website blocking orders: paras. 4-58. The court’s remedies need to remain flexible if the law is to keep pace with changes in society, commerce and technology: para. 59.

Lord Leggatt provided a comprehensive rationale for freezing injunctions, rejecting the earlier view that they were ancillary to a cause of action, in the sense of a claim for substantive relief. Instead, the rationale is the so-called ‘enforcement principle’:

‘the essential purpose of a freezing injunction is to facilitate the enforcement of a judgment or order for the payment of a sum of money by preventing assets against which such a judgment could potentially be enforced from being dealt with in such a way that insufficient assets are available to meet the judgment’ (para. 85, emphases added).[4]

There was no reason in principle to link the injunction to the existence of a cause of action. The relevance of the cause of action is only evidential: to show a sufficient basis that a judgment will be obtained, to justify freezing assets against which the judgment will in future be enforced. The Board departed from authorities, including The Siskina, which limited freezing injunctions to cases where the cause of action for substantive relief had arisen.

The current state of the law

Following his survey of the law, Lord Leggatt summarised the requirements for a freezing injunction in para. 101. In summary, the court can grant injunctions where it has personal jurisdiction over a respondent and it is just and convenient to do so, provided that:

• The applicant has been granted or has a good arguable case for being granted a judgment that is or will be enforceable through the process of the court.
• The respondent holds assets (or is liable to take steps to reduce the value of assets outside the ordinary course of business) against which a judgment could be enforced.
• There is a real risk that, without the injunction, the respondent will deal with the assets (or reduce their value) outside the ordinary course of business, which would impair the availability or value of assets so that the judgment would be left unsatisfied.

There are no further restrictions on the relief, for instance (para. 102):

• The judgment can be given by a domestic or foreign court, or it can be arbitral award. All are capable of being enforced by the domestic court’s processes;
• The judgment does not have to be against the respondent – for instance, in the case of an injunction against a Chabra (or ‘non cause of action’) defendant,[5] who holds assets for the judgment debtor, which would be available for enforcement.
• Proceedings do not already have to have been commenced and (a departure from previous practice) the right to bring proceedings does not yet have to have arisen. It is enough that the right will arise and that proceedings will be brought.

The minority judgment

In his minority judgment, Sir Geoffrey Vos[6] thought that broad survey of the law was inappropriate, given that the Board’s unanimous view that the appeal would be dismissed because service out was not permitted. The majority judgment would not be binding on lower courts, but would be ‘powerful obiter dicta’: paras. 221-3.

Lord Leggatt countered that it was not inappropriate to decide these broader issues. Some of the most significant judgments which developed the law were obiter dicta (such as Hedley Byrne & Co Ltd v Heller & Partners [1964] AC 465). It was necessary and important to decide the issues, to lay to rest the lingering effects of The Siskina.

Conclusion

Ironically, the importance of the majority judgment is best expressed by the minority: Lord Leggatt’s judgment provides a ‘juridical foundation for the entire law of freezing and interlocutory injunctions’ (para. 222).

Clarifying the essential purpose of the freezing injunction – an order designed to aid the enforcement of judgments – removes unnecessary restrictions previously imposed. Even in England it was still thought that an injunction depends on a pre-existing cause of action, which must already have arisen. That is no longer necessary, because it is irrelevant to the purpose of enforcing judgments. Other restrictions maintained elsewhere (such as the BVI rules against injunctions in support of foreign proceedings) have also now been swept away.

While the majority’s judgment may technically be ‘powerful obiter dicta’ it seems almost inevitable that it will be followed in England and the Privy Council’s jurisdictions. Lord Leggatt’s summary of the law in paras. 101-2 is likely to be the future starting point for any freezing injunction application. The judgment also provides a springboard for further developments in the law of remedies to meet future changes in society and business.

Commentary by Alexander Halban

[1] The majority comprised Lords Leggatt, Briggs, Sales and Hamblen.

[2] The UK Civil Jurisdiction and Judgments Act 1982, s. 25, provides for injunctions and other interim relief in support of foreign proceedings, and CPR PD6B, para. 3.1(5) permits service out of claims for such injunctions.

[3] The BVI Eastern Caribbean Supreme Court Act 1969 was amended on 31 December 2020 by the insertion of a new s. 24A to allow injunctions in support of foreign proceedings, although the rules of court have not yet been updated to permit service out. This restored the so-called Black Swan jurisdiction, after the first case which permitted such an injunction in the BVI: Black Swan Investment ISA v Harvest View Ltd (BVIHCV 2009/399) (unreported) 23 March 2010.

[4] The enforcement principle had been recognised in earlier cases, such as Lord Nicholls’ dissenting speech in the in Mercedes Benz AG v Leiduck [1996] AC 284, 306 and in JSC BTA Bank v Ablyazov (No 10) [2013] EWCA Civ 928; [2014] 1 WLR 1414, para. 34 per Beatson LJ and [2015] UKSC 64; [2015] 1 WLR 4754, para. 20 per Lord Clarke (and the dicta cited there).

[5] TSB Private Bank International SA v Chabra [1992] 1 WLR 231.

[6] The minority comprised Sir Geoffrey Vos and Lords Reed and Hodge.