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In order to be granted a freezing order, restraining the disposal of a defendant’s assets with the effect that an actual or anticipated judgment the applicant obtains against the defendant is likely to be rendered unenforceable, the applicant must satisfy the court that there is a real risk that this will happen unless the freezing order is granted.1 In a previous issue of this journal the kind of asset disposal which a freezing order may restrain was considered.2 This kind of disposal was described by Gloster LJ in Holyoak v Candy3 as “unjustifiable dissipation”. The use of a defendant’s assets for ordinary living expenses or to pay legitimate business debts may well make the applicant’s task in enforcing judgment considerably more difficult, but this form of relief is not designed to put the applicant into a position better than that of other creditors seeking payment from the defendant. This current note considers the logically next question, of how great a risk of dissipation must the applicant show, on the assumption that the disposal of assets the applicant fears will occur constitutes dissipation. This question received careful and helpful elucidation in the judgment of Andrews LJ in Les Ambassadeurs Club Ltd v Songbo Yu.4 In some cases there will be overlap between the two questions, the evidence pointing towards the risk of disposal also throwing light on the question whether this is dissipation.
Facts and case history
The respondent was a member of the appellant club, which operates a casino in Mayfair. Between 27 April and 1 May 2018, the respondent purchased £19 million worth of chips from the appellant with cheques that were subsequently dishonoured. In November 2018 the parties entered into a settlement agreement under which the respondent agreed to pay the appellant £16.54 million in instalments. The respondent failed to pay the first instalment on time, which in accordance with the terms of the agreement made the £16.54 million due and payable immediately.