February 9, 2018
Freezing orders and seize and search injunctions – what you need to know
Contract law is complex and multifaceted. Our team of barristers has considerable experience of commercial disputes at all levels and will be able to help you understand and take relevant action on any challenges you might be facing.
Our overview of freezing orders and search and seize orders reveals some of the complexities.
What are freezing orders and search and seize orders?
Freezing orders and search and seize orders are aggressive and expensive steps in litigation. Some important points to note:
- Both orders are injunctions, that is, an order of a judge telling someone to do or not do something.
- Refusing to obey an injunction is contempt of court.
A freezing order freezes a person’s assets to prevent them being disposed of, so that they will be available to pay a court judgment. If an injunction is granted, the defendant will be ordered to make a statement disclosing his assets. After the first “without notice” hearing a second, “with notice” hearing will take place within 14 days. The defendant will be present and can say to the judge that the order ought not to have been made at all, or is too wide and should be limited in amount. You can see a specimen order here.
A search and seize order is a very serious and even more aggressive injunction which can only be made in the High Court. These are often carried out early in the morning and commonly known as “dawn raids”. The aim is to preserve evidence or property relevant to court proceedings. The defendant is ordered to let the applicant’s solicitors enter premises, search them for anything named in the order and to take photos and samples. An expert will search computers. Often the defendant will also be ordered to disclose where things are. To obtain a search and seize order you need an extremely strong case at first sight, very serious damage for you, clear evidence of possession of something incriminating, a real possibility of destruction of that thing, and likelihood that the harm caused by the order will be proportionate to the object of the order. It is extremely time consuming and expensive to prepare to apply for the order and to carry it out. You can find a specimen order here.
What does the procedure involve?
The procedure for both is that an application notice with draft order is issued, a fee paid, and an affidavit supporting it is made for the court to consider. This happens at a hearing which takes place without notice to the defendant.
Full and frank disclosure of all relevant facts is required – and if it is not given, any injunction may not stand. An applicant must give the court an undertaking – or solemn promise – to pay the defendant for any damage caused by the order. If there is not already a legal claim underway the applicant will have to start one immediately and pay a fee depending on the amount claimed.
What legal expertise is necessary?
All the drafting of court papers in either of these cases demands specific legal expertise and this is where our team can help. Our barristers, with their considerable experience in these matters, will also be able to represent you in court. And in carrying out these orders you will need experienced solicitors with specialist knowledge whom we can help you to find.
Our barristers are able to tackle the most challenging commercial cases. To instruct one of our legal team, first read our simple step-by-step guide, then get in touch with the clerks in our central Brighton office who will be able to advise you on what to do next.
By Paul Ashwell | Contracts and Debt Recovery