Where a claimant has good reason to believe that a defendant may be unwilling to satisfy a judgment debt or may seek to conceal or destroy certain evidence relevant to his or her claim, the Supreme Court has the jurisdiction to grant two powerful orders. These orders are the freezing order and the search order.

The Freezing Order

The freezing order (formerly the Mareva injunction), is a specific type of interim injunction used to prevent a defendant from removing or dissipating assets before trial thereby providing a successful claimant with assets to satisfy any judgment made in his or her favour. It will not however operate as a lien on the defendant’s assets; neither will it place the claimant in the position of a secured creditor nor cause the claimant to rank above other secured creditors.

In urgent cases an application for a freezing order may be made before the start of proceedings but it may also be obtained post -trial.

In order to succeed on his or her application (usually without notice to the defendant), a claimant must satisfy the Court that:

1. the claim is one over which it has jurisdiction;

2. he or she has a “good arguable case”;

3. the defendant has assets in Jamaica;

4. there is a real risk the defendant may dissipate his or her assets before judgment can be enforced; and

5. on considering the inconvenience which may be caused to either party, it is more convenient to grant the order than not.

In extraordinary cases, where the defendant has no assets in the jurisdiction, a worldwide or extra-territorial freezing order may be granted to prevent a defendant from dealing with his or her assets outside of the jurisdiction. These types of freezing orders must include a proviso known as the “Babanaft” proviso which should state that the order will not affect third parties outside the jurisdiction until it has been recognized, registered or enforced by a foreign court. In even more exceptional cases, the Court may order the transfer of assets from one foreign jurisdiction to another to prevent their dissipation.

Even though a sum of money is the usual subject-matter of a freezing order, a Court has the jurisdiction to “freeze” other tangible assets, such as a motor-vehicle, ship or aeroplane.

The Search order

A search order is another type of injunction which, when granted, requires a defendant to allow a third party to enter his or her premises for the purpose of searching, seizing and thereby preserving documents which are relevant to a claimant’s claim. The search order (formerly the Anton Piller order), is usually used in cases where a claimant has alleged a breach of copyright or infringement of patents. Before an application can be granted a claimant must satisfy the Court that:

1. he or she has, on the face of it, a strong case against the defendant;

2. the defendant’s acts have caused or are causing serious harm to the claimant; and

3. the defendant has in his or her possession incriminating material and there is a risk that he or she may destroy such material.

Due to the potentially invasive and oppressive nature of the order, a Court must be satisfied that the claimant should be granted such an order. However, a Court will not require a defendant to disclose any material which will breach his or her common law privilege against self-incrimination, that is, a defendant will not be required to disclose in the civil proceedings, any material which may be used in criminal proceedings against him or her.

Neither order is easily granted by a Judge of the Supreme Court, and a claimant approaching the Court is expected to be full and frank in his or her disclosure about all issues concerning the case, even if those issues may adversely affect him or her. They are also not “free of costs” as a claimant who is successful in obtaining any of these orders will almost certainly be granted the order on the understanding that he or she must give the Court his or her undertaking in damages, which means that if at trial it turns out that he or she is not successful, he or she must then compensate the defendant against whom the order was granted for all the damages he may have suffered by the grant of the freezing and search order. This can be extremely costly and is one of the most important elements to consider when thinking about obtaining any one of these orders.

Corrine Henry is an associate at Myers Fletcher & Gordon and a member of the firms Property Department. Corrine may be contacted at corrine.henry@mfg.com.jm or through www.myersfletcher.com