CIVIL PROCEDURE — Interim preservation — Freezing orders — Variation of — Where undertakings given and freezing orders made by consent
Quick Take
1Where interlocutory asset preservation orders are made by consent without a contested hearing and do not reflect a contract between the parties, the threshold for variation may be less demanding than the material change of circumstances test applicable to orders made after a contested hearing, though a material change of circumstances will suffice to engage the court's discretion.
2A party that has obtained consent freezing or asset preservation orders bears the substantive burden of satisfying the court that the orders should be continued when the respondent applies for variation, even though the respondent is technically the moving party.
3Asset preservation orders should only restrain the illegitimate dissipation of assets; a defendant subject to such orders retains an entitlement to use assets for legitimate purposes including reasonable legal expenses and bona fide business expenses, and this principle applies equally to bespoke consent regimes serving a similar function to Mareva injunctions.
