Snapshot: Notification Injunctions In The Cayman Islands

• Published date: 05 April 2021
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Ogier
• Author: Ms Jennifer Fox, Anna Snead and Oliver Green

What is a notification injunction?

A notification injunction is an alternative to the conventional freezing order that is available where there is concern that a respondent may deal with their assets so as to frustrate the enforcement of any future judgment. This new breed of quia timet "notification" injunction does not prevent the disposal of or dealings with assets, but instead requires a respondent to give an applicant prior notice before the defendant can dispose of or deal with its assets.

Notification injunctions are granted as an alternative to a freezing order, where the grounds for a freezing order are made out but the court prefers to order a less intrusive form of relief and does not consider a freezing order to be necessary. However, the value of a notification injunction is plain as, once notice has been given of an intention to dispose of or deal with assets, the plaintiff may then decline consent or seek further relief from the Cayman court such as a freezing order.

Notification injunctions in the Cayman Islands

The Cayman court has confirmed that it has jurisdiction to grant a notification injunction: ArcelorMittal v Essar (unreported, Grand Court, 29-30 May 2019), Kawaley J, relying on the English Court of Appeal authority of Holyoake v Candy [2018] Ch 297.¹

The criteria which must be met by a plaintiff seeking a notification injunction is the same as the criteria for a freezing injunction, as follows:

1. A good arguable case on the underlying merits
2. A real risk, judged objectively, that a future judgment would not be met because of unjustified dissipation of assets In ArcelorMittal, the Judge commented, obiter, that "without deciding the point, it seems to me that the bar required for demonstrating a risk of asset dissipation ought to be lower for a judgment creditor than a plaintiff" and that "where a judgment debtor displays a steadfast unwillingness to meet its obligations.. the Court should be slow to withhold relief essential by way of enforcement, on technical evidential grounds."²
3. Not every risk of a judgment being unsatisfied will justify injunctive relief. Solid evidence is required to support a conclusion that the relief is justified, and what this entails will vary in any given case according to the surrounding circumstances of the case
4. The court must be satisfied that it is just and convenient to grant the injunction. It is clear from the judgment in Holyoake that "the intrusiveness of relief will be a highly relevant factor...