Ian Franses v Somar Al Asad
26 October 2007
[2007] EWHC 2442 (Ch)
Citation: [2007] EWHC 2442 (Ch)
Facts:
C made a without notice telephone application for freezing orders. D alleged that the application was, inter alia: (a) devoid of merit; (b) improperly prosecuted without notice; (c) procedurally flawed; (d) reliant on improperly obtained evidence. D contended that the injunction should be discharged and that the court should make an indemnity costs order.
Held:
The judge found that the original application met the substantive requirements of a good arguable case and a real risk of dissipation of assets. However, he also found that the application was improperly made without notice, that it suffered from severe procedural flaws (insufficient documentary evidence before the judge and a defective affidavit), and that the duty of full and frank disclosure was breached in two respects. Looking at the matter in the round, the judge was satisfied that the cumulative effect of these deficiencies justified an award of costs on the indemnity basis. Citing Lord Hope in Fourie v Le Roux, the court stated that the award of costs on the indemnity basis will not be justified unless the conduct of the paying party can be said in some respects to have been unreasonable. In this case the decision to make the application without notice was unreasonable, and at least some of the procedural deficiencies were serious matters of which the court should mark its disapproval. These features taken together were sufficient to remove the case from the ordinary run, or to take it "out of the norm" (the phrase endorsed by the Court of Appeal in Excelsior Commercial v Salisbury [2002] EWCA Civ 879.)