05/06/2013

Lakatamia Shipping Co Ltd v Nobu Su & Ors [2013] EWHC 1814 (Comm)

This is a significant case on the meaning the standard form of freezing injunction included in the Commercial Court Guide on which there is presently little authority.

Most important are Burton J's findings in relation to the definition of assets. That definition provides that the Respondent's frozen assets "include any asset which he has the power, directly or indirectly, to dispose of or deal with as if it were his own. The Respondent is to be regarded as having such power if a third party holds or controls the asset in accordance with his direct or indirect instructions."

Burton J held that where the Respondent was an individual with sole directorship of and 100% shareholding in a particular company, dealing with the assets of that company would be restrained by the freezing injunction. In the judge's view, this did not infringe the principles of corporate personality in Salomon v Salomon & Co [1897] AC 22.

In addition, and also importantly for respondents to freezing injunctions, Burton J concluded that even where an injunction contained a specific exception to permit the payment of ordinary business expenses and of legal costs, a respondent was not entitled as a general rule to use frozen money held by it in the jurisdiction without first proving that it had no other assets available for this purpose abroad (even if they too were frozen).

Josephine Davies appeared for the Defendants/Applicants (instructed by Cooke Young & Keidan LLP)