A short judgment from Mr Justice Henderson on 22 July 2016 in the case of Haederle v Thomas, is a reminder of the importance of “crossing every T” when it comes to the wording of freezing injunctions, not least if one wishes for the injunction to carry a criminal sanction.
In this case Mr Haederle (acting in person) had obtained a worldwide freezing injunction against the defendant following a successful unfair prejudice petition in 2007. The terms of the freezing injunction prevented Mr Thomas from disposing of any assets worldwide up to £560,000 and then, in a separate paragraph of the injunction, spelt out in positive terms, Thomas’ rights under the injunction. Unfortunately the monetary value at the end of this paragraph had been left blank, leaving the injunction reading: “… If the Respondent has other assets outside England and Wales, he may dispose of or deal with those assets outside England and Wales so long as the total unencumbered value of all his assets whether in or outside England and Wales remains above £ “.
This sentence had gone unamended since the injunction had been granted in 2007, albeit that Mr Justice Henderson noted that had Haederle applied to the court under the “slip rule” in CPR 40.12, he would have been permitted to amend the injunction by adding what was plainly the missing value of £560,000.
Haederle pointed to various pieces of evidence to suggest that Thomas knew well what the true meaning of the injunction was, including a letter which Thomas had written to the court in January 2016 asking for what Thomas described as the “clerical mistake” to be amended, saying: “This is material to the contempt application made”. However, given in particular that Thomas was not legally represented at the time of writing the letter, Mr Justice Henderson did not consider that much reliance could be placed on it.
The judge considered that there was “much force” in Haederle’s submission that, read as a whole, it was obvious that the missing figure in the injunction was £560,000 and that anyone acquainted with the law and practice of freezing injunctions could be in no doubt about the figure that was intended. However, in this instance, the reader was not present at the original hearings, English was not his first language and the precedent on which the injunction was based did not make it clear that the same amount should be specified throughout the relevant paragraph.
On this basis, Mr Justice Henderson found that he saw “no escape from the conclusion that the freezing order was in this material respect unclear and uncertain” and that Thomas “should not find himself at risk of imprisonment, or payment of a fine, in respect of dealings with his non-English assets, when the order served upon him was deficient in this material respect”.