Worldwide freezing and disclosure relief denied in aid of a Belgian claim, in an application under section 25 Civil Jurisdiction and Judgments Act 1982

Anna Caddick

The claimant in ICICI Bank UK plc v Diminco NV was an English Bank, a wholly owned subsidiary of one of the largest banks in India, operating through its Antwerp branch. The defendant was a distributor of diamonds based in Antwerp and operating in eight countries (not including the UK). The claimant had provided substantial working capital facilities to the defendant, on which the defendant started to default from 2010 onwards and, by February 2013, owed $25.8 million. In early 2013, the defendant requested a new credit facility; the claimant refused and the defendant then brought a claim against the claimant in Belgium on basis that the claimant had given the false impression it would provide the facility. The claimant counter-claimed for recovery of the debt. The Belgian court promptly made an attachment order against the defendant’s immovable assets.

The claimant applied to the Commercial Court under section 25 of the Civil Jurisdiction Act 1982 for a worldwide freezing order (other than in Belgium) and asset disclosure in support of the Belgian proceedings. Mr Justice Popplewell summarised the principles in respect of granting freezing injunctions in support of foreign proceedings:

  • Protective measures should normally be left to the jurisdiction where the assets are found or where the defendant resides.
  • Where there is reason to believe the defendant has assets within the jurisdiction, it may often be appropriate for the English court to grant assistance by way of a domestic freezing order.
  • Where the defendant is resident in the jurisdiction, a worldwide freezing order may be granted applying discretionary principles set out in case law.
  • If the defendant is neither resident within the jurisdiction nor someone over whom the court could assume in personam jurisdiction for some other reason, the court will only grant a freezing injunction extending to foreign assets in exceptional circumstances.

There was evidence that the defendant had bank accounts in the jurisdiction. The judge considered that that justified an order freezing the defendant’s assets in England and Wales and accompanying disclosure. In light of the principles set out by the judge, the claimant had reduced its application in respect of worldwide assets to disclosure; however the judge held that such relief would be inappropriate and inexpedient. The defendant was not subject to the jurisdiction of the English court and the court had no ability to enforce compliance with its orders. Such disclosure orders were made to police freezing orders and if it was not expedient to make a freezing order, then there was no warrant for a disclosure order either.

ICICI Bank UK plc v Diminco NV [2014] EWHC 3124 (Comm)

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