Post-Judgment Freezing Orders – An 'Enhanced Role'

Introduction

The English Commercial Court recently denied an applicant's attempt to set aside a worldwide freezing order on the basis that there was a risk that the individual would try to hide his wealth if the order was discharged.

Freezing orders, one of the two "nuclear weapons" of the law1, are important and potentially critical tools available to litigants whose adversaries' intention to honour adverse judgments are doubtful.

The case of FM Capital Partners v Marino2 provides a useful reminder of the rationale for, and material benefits of, worldwide freezing orders in the context of high value litigation, and provides useful guidance to the approach the courts will adopt when determining the risk of dissipation of assets for the purpose of assessing whether the order should be continued.

Background

The high profile judgment earlier this year in FM Capital Partners brought to an end long-running litigation concerned with allegations of breaches of fiduciary duty, dishonest assistance and unlawful means conspiracy, or so the parties must have hoped.

Those familiar with the case will recall that the High Court ruled in favour of the alternative asset manager, FM Capital Partners ("FMCP"), finding that its former Chief Executive Officer, Frederic Marino, and his associate Yoshiki Ohmura, had acted dishonestly over a number of years, having received secret commissions and paid bribes worth in excess of US$25 million in connection with a portfolio of assets owned by a Libyan sovereign wealth fund, the Libya Africa Investment Portfolio and managed by FMCP. In July 2018, Mrs Justice Cockerill ruled in the High Court that Mr Marino and Mr Ohmura were liable for

bribery and, in Mr Ohmura's case, for dishonestly assisting Mr Marino in other breaches of fiduciary duty, and ordered that Mr Ohmura pay FMCP a little over US$9.9 million plus post-judgment interest.

In September 2018, upon FMCP's application, HHJ Waksman QC made a worldwide freezing order ("WFO"), without notice, restraining Mr Ohmura's dealings with certain specifically identified assets. The present proceedings related to Mr Ohmura's application to discharge the WFO.

What is a freezing injunction?

Before turning to consider how the Court dealt with Mr Ohmura's application to have the WFO discharged, it is worth considering brief ly what freezing injunctions are intended to achieve. Previously known as "mareva injunctions", freezing injunctions are dealt with in CPR 25.1(1)(f) (and...