Welcome to the latest edition of Osborne Clarke’s Asset Tracing and Enforcement Update.
In this edition, we discuss a recent judgment we have been involved in relating to service of proceedings on a Russian individual at our offices in London (avoiding the processes of the Hague Service Convention). We also discuss some recent developments relating to worldwide freezing orders which are important from a strategic perspective.
Service abroad: avoiding the Hague Service Convention procedures
In a recent decision, the English High Court allowed service of proceedings on a Russian resident individual by post to the address of our offices in London. The individual was not our client (although we had previously acted for a related company) and he had no presence in England. We are now acting for the individual in seeking permission to appeal the decision to the Court of Appeal.
This appears to reflect an increasingly practical and informal approach by some judges to the rules about service on foreign defendants. A decision of the Supreme Court in 2013 (Abela v Baadarani) had lowered the threshold for the court allowing alternative methods of service where no international service convention applies. However, it expressly avoided changing the law in relation to cases where an international service convention does apply. The appeal, if permitted, should provide much needed clarity on when, if ever, it is permissible for the English courts to circumvent the procedures in the Hague Service Convention by allowing service by an alternative method in England.
Freezing orders: recent developments impacting on international enforcement
English law provides claimants and judgment creditors with a range of weapons to ensure that justice can be done and to preserve assets for enforcement. One of the most powerful and draconian of these is the freezing injunction. It can bind assets and parties worldwide, under threat of imprisonment if the terms of the order are breached, although it does not give the claimant any proprietary or security interest in the frozen assets.
In this update we draw your attention to recent case law about the following important strategic points:
- the impact of UK freezing orders on third parties in other EU countries;
- whether freezing orders can continue indefinitely;
- the significance of the cross-undertaking in damages that the claimant must provide; and
- less aggressive forms of order for situations where a claimant does not have strong evidence of dissipation of assets.
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Osborne Clarke has market-leading expertise in cross-border asset tracing and enforcement of judgments and arbitration awards. Please contact a member of our team below to discuss international enforcement strategies or how we can assist in managing costs exposures through a tailor-made funding package.