In Broad International Ltd v Convoy Collateral Ltd[2021] UKPC 24, a specially-constituted 7-judge committee of the Privy Council, including the President and the Deputy President of the Supreme Court and the Master of the Rolls, set out a new juridical basis for freezing injunctions.
The DNA of English law
English law through the centuries has had three main strands to its DNA. The first has been the ancient power of the monarch to do justice in an individual case. The second has been the concern of the common law to maintain the traditions of the community and provide certainty for people in their interactions with the law. The third has been the mission of Parliament, expanded over the centuries, to improve the lives of citizens and promote the wellbeing of the nation.
These elements have crossed paths over the years. The powers of the monarch were devolved to the courts of equity and combined with the common law courts in the nineteenth century. The decisions of the courts have focussed on the meanings of statutes issued by Parliament (in particular, following the invention of judicial review, how statutes have been put into practice by government). Parliament has often felt compelled to issue new laws to correct what it has seen as missteps by the courts. This interrelation has become all the more complicated as the modern world has become more interconnected and as English law has been called on to respond to situations concerning many different parts of the globe.
The interim injunction is perhaps the paradigm example of this. Originally derived from equity, the common law has striven to impose a proper theoretical basis on its use, thereby allowing for incremental development in the modern world, while the legislature has periodically stepped in to bring order (as it sees it) to a complex instrument that can impact on the country’s standing in the world. The Broad International case has brought this interaction into focus.
A short history of the freezing injunction
The freezing injunction is a relatively recent invention. It was in the 1970s, via a series of cases (the most famous of which is Mareva Cia Naviera SA v International Bulk Carriers SA [1975] 2 Lloyd’s Rep 509, after which the injunction was first named), that the courts established that they could and would issue orders compelling a defendant not to deal with their property pending the outcome of a case.
No sooner had this been created, however, than complications began to appear. In particular, by the late 1970s the House of Lords (in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA (“The Siskina”) [1979] AC 210) had decided that the rules of court that were in place at the time did not permit service of an application for a freezing injunction out of the jurisdiction when the underlying claim was in a foreign court. Effectively, this meant that the English courts could not issue freezing injunctions in support of foreign proceedings over assets in this country where the owner is in another country. There were even doubts whether they could issue freezing injunctions in support of foreign proceedings at all.
Parliament then stepped in to fix this: first the power to grant a freezing injunction was put on a statutory footing, in the Senior Courts Act in 1981; then the Civil Jurisdiction and Judgments Act 1982 confirmed that the courts could grant interim relief in support of foreign proceedings. In 1997, the rules of court were also changed, to allow an application for a freezing injunction to be served out of the jurisdiction where there is no underlying claim in the English courts (this is now in Practice Direction 6B of the Civil Procedure Rules).
This rapid law-making, however, had overtaken the efforts of the common law to make sense of this new instrument at the courts’ disposal, and in a series of cases over the ensuing decades the courts set to the task of working out the theoretical underpinnings and limits of this power (neither of which were provided by Parliament). This has been important not only for the development of English law, but also for the laws in other countries which adhere closely to English law and allow a final appeal to the Privy Council, and where the legislatures may not have acted as swiftly as the UK Parliament.
Freezing injunctions in the BVI
One such country is the British Virgin Islands. Its courts have (mostly) followed the English common law in relation to injunctions; and its legislature has issued statutes that have (mostly) matched the laws on this topic that have been passed by the UK Parliament. The rules of court have not been changed, however, to allow for service out of the jurisdiction of an application for interim relief in the same manner as the English court rules. The question then arises as to whether the law from the 1970s (as set out in The Siskina) still holds sway, or whether a fresh approach could be taken in light of the developments in the intervening years. This has been answered in the Broad International case.
The case arose out of a financial scandal in Hong Kong concerning the Convoy Financial Group. An investigation by an activist shareholder and then by the Independent Commission Against Corruption in Hong Kong led to the arrest of the Group’s Chairman, and others, in 2017. One of the Convoy companies, Convoy Collateral Limited, commenced a civil action in the Hong Kong courts against various individuals who were said to be involved in the scandal. In particular, it pursued Dr Cho Kwai Chee who, it was alleged, was behind the fraud. As an adjunct to that claim, it also applied for freezing injunctions over Dr Cho’s assets both in Hong Kong and the BVI. The application was made in the BVI because Dr Cho is the majority shareholder in Broad International, a BVI company which owns the Town Health Medical Group in Hong Kong. The application was made both against Dr Cho and Broad International itself, and at first instance the injunctions were granted. An appeal was made to the Eastern Caribbean Court of Appeal, and then a further appeal was made to the Privy Council in London.
The Privy Council decided that in the absence of a change to the BVI rules of court, The Siskina still applied in the BVI, meaning Dr Cho was outside the jurisdiction of the BVI courts and the freezing injunction against him could not be maintained; while on the facts of this case, Broad International could not be equated with Dr Cho and there was no basis for a freezing injunction against it.
A new theory of freezing injunctions
What is most significant about this case, however, is not the decision about the specific injunctions but the effort by the majority of the court to establish a new theoretical framework for freezing injunctions.
After a long survey of all the relevant cases, Lord Leggatt said that such injunctions are based on an “enforcement principle”, i.e. to facilitate the enforcement of a future judgment rather than to support an existing cause of action (this had already been referred to in some earlier cases). He also summarised the court’s power as follows:
“… a court with equitable and/or statutory jurisdiction to grant injunctions where it is just and convenient to do so has power – and it accords with principle and good practice – to grant a freezing injunction against a party (the respondent) over whom the court has personal jurisdiction provided that:
(i) the applicant has already been granted or has a good arguable case for being granted a judgment or order for the payment of a sum of money that is or will be enforceable through the process of the court;
(ii) the respondent holds assets (or, as discussed below, is liable to take steps other than in the ordinary course of business which will reduce the value of assets) against which such a judgment could be enforced; and
(iii) there is a real risk that, unless the injunction is granted, the respondent will deal with such assets (or take steps which make them less valuable) other than in the ordinary course of business with the result that the availability or value of the assets is impaired and the judgment is left unsatisfied.”
Importantly, Lord Leggatt clarified that a freezing injunction can be issued in support not only of a domestic court judgment but also a foreign judgment or an arbitration award; it can be issued not only against the party against whom the final judgment will likely be made but also against others as appropriate; and it can be issued in support of proceedings that are going to be commenced in the future, and as well as in support of proceedings that have already commenced.
Comment
The freezing injunction was created by equity, then Parliament clothed it in statute. Now the common law has caught up, through the Broad International case, by providing a proper theoretical underpinning. The creation of this juridical foundation is not without criticism: the minority in the Privy Council thought that Lord Leggatt’s speech went too far, beyond what was needed in the case, and cautioned against such broad analysis because of the risk of unintended consequences as the law developed further. Yet it is undoubtedly a significant step, and this case will become the touchstone for freezing injunctions in the English courts in years to come. Indeed, it might now be easier to obtain such injunctions now that the law has been set out with such clarity.
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