Asset freezing, by way of a court order, is designed to prevent an alleged fraudster from dissipating assets with a view to defeating any subsequent court order which may permanently deprive that person of those assets.
Frequently, in both criminal and civil courts, authorities will obtain, invariably without notice to the alleged offending party, a court order freezing all of the assets of that party (‘ a Freezing Order’), thereby immediately preventing their sale or disposal in any fashion.
Kangs Solicitors have a wealth of experience in advising on and supporting clients who are served with a Freezing Order.
The Nature of A Freezing Order | Kangs Advisory Solicitors
Appearing in civil law in 1975, Mareva Injunctions, as they were originally known, have developed into what is now the customary form of the Mareva Injunction, a Freezing Order.
In addition to being made against the potential defendant, a Freezing Order can also be made against a third party, such as a bank or trustee, holding assets on behalf of that person.
However, Mareva Injunctions were never intended to change English laws of insolvency and they do not prevent a defendant from repaying legitimate business debts from frozen assets, although an application will need to be made to the court seeking an order authorising any such payment.
With a view to preserving assets pending anticipated criminal proceedings, prosecutors and regulators, in anticipation of successfully securing a conviction and an Order for Confiscation Proceedings, will seek a Restraint Order which is, effectively, another form of Freezing Order.
Requirements For The Grant Of A Freezing Order
These orders are not granted lightly and the court will exercise its discretion to grant a Freezing Order only where it considers it just and convenient to do so (section 37(1), SCA 1981).
In addition, case law has established the following conditions for a Freezing Order:
- The applicant must have a cause of action, that is, an underlying legal or equitable right.
- The applicant must have a good arguable case.
- The existence of assets within the jurisdiction.
- A real risk of the respondent’s assets being dissipated
However, it is not unusual for a recipient of a Freezing Order to oppose the need for both its issue and requirements.
Immediate Effects Of A Freezing Order | Kangs Complex Fraud Team
Receipt of a Freezing Order by an individual or a business of any nature can have immediate serious consequences given:
- that banks and other financial institutions can be prevented from making any payments other than by further court order,
- the level of expenditure allowed to a defendant and
- the purpose of such expenditure will almost certainly be regulated by the authorities,
- the effects of a Freezing Order are immediate, and prompt attention is required to respond to demands that will be contained within a Freezing Order,
- the amount of time which will need to be devoted to deal with the requirements of the Freezing Order.
Failure to comply with the requirements of a Freezing Order can be extremely serious.
Steps can be taken to:
- oppose any unreasonable restrictions imposed
- obtain authority for payment of legitimate debts
- increase the level of expenditure allowed.
How Can We Assist You? | Kangs Criminal Solicitors
Dealing effectively with a Freezing Order requires considerable expertise, especially at a time when the recipient is, invariably, distressed and concerned, and expert guidance is essential.
We can advise and represent you by:
- advising on the contents and requirements of a Freezing Order
- assisting in the preparation of any affidavit or other document required
- negotiating any variation of any unreasonable terms
- considering any possible grounds for discharge of the order
- guiding generally throughout the process.
Who Can I Contact For Help? | Kangs Freezing Order Solicitors
Our team of solicitors can be contacted through any of the following: