Freezing order should not have been made

Fourie v Leroux and others ChD TLR 8 October

The only process in existence between the parties was insolvency proceedings in South Africa resulting in the appointment of a provisional liquidator of the claimant company who obtained a letter of request to the English court seeking its aid in general terms. The relief sought in South Africa did not include a claim for damages and was limited to the return of assets attached by a South African magistrates court. No proceedings had been issued in the English High Court, other than an originating application seeking a freezing order, which made no claim for substantive relief. In these circumstances the English High Court had no jurisdiction to grant a freezing order. It is not sufficient that a foreign court should seek some kind of relief from the English court. It was for the English court to decide whether to grant it, although in doing so the English court would respect and give weight to the foreign court’s request and would assume that the foreign court had jurisdiction. To obtain relief in England there had to be a pre-existing cause of action that would be enforceable by a final judgment. The asset-freezing jurisdiction could be invoked only if there were proceedings already issued or, if it was urgent, an undertaking would be required that the proceedings should be issued as soon as practicable. The liquidator had no intention of complying with those basic principles. To make a freezing order against the respondents in circumstances where no substantive proceedings had yet to be issued was fundamentally wrong.