26 Mar 2019

Post-Judgment Freezing Orders under the spotlight


Spring is in the air but two recent Court of Appeal cases confirm that the chilling effect of a post-judgment freezing order can continue, no matter how long ago it was granted and no matter what its effect on a respondent's business.

Interim Freezing Orders may attract the most interest (and arguably have the more draconian effect). However, the impact of post-judgment Freezing Orders should not be underestimated. In the first case to be examined in this article, the Court of Appeal confirmed that post-judgment orders can no longer be described as "rare" and the developing body of case law shows what a useful tool they can be to a claimant in enforcing judgments.

MWP v Emmott [2019] EWCA Civ 219


This case, described by Jackson LJ as "pathological litigation", concerned proceedings between two lawyers, Mr Wilson and Mr Emmott. Mr Emmott claimed he was entitled to a shareholding in the appellant company, MWP Ltd ("MWP"). In 2014, a Freezing Order was granted against MWP for over £3 million (in support of an arbitration award that was unpaid).

Freezing Orders usually allow respondents to deal with or dispose of assets in the ordinary course of business (commonly referred to as an Angel Bell exception). In this case, in 2017 the Court ordered that the Angel Bell proviso in the Freezing Order should be removed. This is a significant step, because it essentially stops the respondent from carrying out any transactions, even if they are routine business transactions (such as paying staff or suppliers).

MWP appealed this decision, and the Court of Appeal has provided a useful reminder of the principles that apply to post-judgment freezing orders:

  • A post-judgment freezing order is granted to facilitate execution of a judgment or award.It is intended to guard against a risk of dissipation, for the period between judgment and execution, where there is a risk the judgment will not be satisfied unless there is an injunction.
  • A post-judgment freezing order will, necessarily, increase pressure on a respondent.However, the mere increase in such pressure does not make it illegitimate.
  • The ordinary course of business exception will "sometimes and perhaps usually" be inappropriate.In pre-judgment freezing orders, the Angel Bell exception will almost always be included; it is significant that the Court has confirmed that "usually" a post-judgment freezing order will be more draconian and prohibit even ordinary business transactions.
  • The decision whether or not to include an Angel Bell exception is discretionary:the Court will decide this on the facts in each case.

In this case, the court concluded that there was a risk of dissipation and that it appeared the respondent was  seeking to evade enforcement. While the court confirmed it did not take the risk of the respondent's business becoming insolvent "lightly", it held there were alternatives available, namely the respondent paying the maximum sum of the freezing order into court. It therefore upheld the removal of the Angel Bell exception.

Markham v O'Hara [2019] EWCA Civ 397

In another recent case, the Court of Appeal upheld a partial and conditional discharge of a post-judgment freezing order obtained nearly ten years ago (in December 2009) by the Respondent, Ms O'Hara, against Mr Markham.


Judgment was awarded to Ms O'Hara in 2009 for approximately £1 million together with a post-judgment freezing order. Mr Markham failed to provide adequate disclosure of his assets and committal proceedings were commenced (but subsequently discontinued). Ms O'Hara commenced various enforcement proceedings, including obtaining in the Paris High Court a writ of seizure over a flat owned by Mr Markham. In breach of the French writ, Mr Markham removed valuable art work and furniture from the flat (the "French Assets"). For this, he was prosecuted and convicted. The current sum outstanding on Ms O'Hara's judgment remains over £1 million.

In 2017, Mr Markham applied to discharge the freezing order on the grounds that it was no longer just and convenient for it to be continued, seven years after the committal proceedings were discontinued and three years after any other enforcement steps. In response to that application, the Court partially discharged the freezing order but continued it in respect of the Assets. Crucially, the Court also made the discharge conditional on Mr Markham providing his residential address. Ms O'Hara claimed that Mr Markham still had the French Assets and that if he provided an address, she would enforce against them.

Mr Markham appealed, but the Court of Appeal rejected the appeal and made the following findings which are of interest for other cases:

  • There remained a real risk of dissipation of the French Assets.Mr Markham had breached both the English and French Court Orders. The courts should be astute not to allow a party to benefit from their own unlawful act.
  • It was appropriate to oblige Mr Markham to provide a residential address in circumstances where his failure to provide it was part of a pattern of non-compliance, and where it would be an important aid to enforcement.
  • There was a link between the failure to provide an address and the failure to take enforcement steps.


These judgments demonstrate that the English courts will act rigorously to enforce the terms of Post-Judgment Freezing Orders. The fact that enforcement has been unsuccessful or delayed, or that it may have an adverse impact on a respondent's business, will not be sufficient to persuade the court that a Freezing Order should be discharged.

Enforcement can sometimes take months or even years. This judgment should reassure claimants that freezing orders can assist in this process, even if it takes time.

Stephenson Harwood LLP's fraud and asset recovery team has extensive experience of obtaining freezing order relief, both in support of substantive proceedings and in support of enforcement. Please do not hesitate to contact the team for further details.