Freezing Orders / Injunctions
A Freezing Order is an order which is issued in the High Court by an enforcement authority – [police or HMRC] which:
- specifies the property and
- prevents the sale or dealing with property owned or presumed to be possessed by the person to whom it is addressed
The High Court has to be satisfied that there is a good arguable case that the property is recoverable property and if not recoverable property it is associated property.
Recoverable property means property that has been obtained by unlawful conduct whoever it is then held by (section 304 Proceeds of Crime Act 2002).
Associated property (section 245 Proceeds of Crime Act 2002) means property that it not itself resulting from criminal conduct but has been preserved or retained by the existence of other criminal property.
Explanation of Freezing Orders
Freezing Orders are used to freeze assets which are in the hands of a person who has not been prosecuted for any offence but may have a legal interest in the property that can be traced back to someone who has been prosecuted.
The High Court has to be satisfied that there is an arguable case that the property was obtained from someone unlawful conduct but so they need to prove the link between the person prosecuted and the property either directly or indirectly.
Freezing order only freeze assets or property, they do not change the ownership of it in themselves or force a sale of assets directly.
Variation of Freezing Orders
The Court may at any time vary or set aside a property freezing order. Section 245c as above.
To vary freezing, you have to show that there is not a ‘good arguable case’ that the property is recoverable or associated property. You need to disclose how the property of funds were acquired and that they are not directly or indirectly criminal property.
Exclusions of Property
The Court may exclude property from a freezing order and will often exclude:
- Funds for reasonable living expenses
- Funds to carry on a trade or business
Exclusions for Reasonable Legal Fees
The Court will allow to be excluded from a Freezing Order Funds for reasonable legal fees and in some instances legal aid available to vary of discharge a Freezing Order.
Opposing a Freezing Order
MJP solicitors specialise in Proceeds of Crime Act 2002 cases. Every case is different but the principles are the same.
The first step is to review the freezing order and application to find out how the enforcement put a ‘good arguable case that the assets are derived from unlawful conduct [usually of a third party] or are associated with such conduct.
The second step is to find out what can be immediately be excluded from the freezing order including living expenses, business assets or legal fees.
The third step is to put forward a response by way of disclosure setting out whether you challenge:
- all of the order and are seeking to have it set aside completely and/or
- part of the order, what part is accepted and what should be excluded.
If all the order is accepted, then the next step is to prepare a consent order.
Contesting a Freezing Order
The burden of proof on each party is the civil burden. Each Party has to prove their case on the balance of probabilities.
The enforcement authority has to prove that the property is resulting directly or indirectly from another’s criminal conduct whether you knew that or not. It’s not relevant to these civil proceedings.
You ve to prove that the property does not come from anyone’s criminal conduct and usually how you came into possession of the property. The proof is on the balance of probabilities. Where you show that you have paid for a property or the mortgage and deposit, this is important. The Freezing order aims only to capture property that is derived from someone else’s unlawful conduct.
MJP solicitors recommend using a forensic accountant to assist with applications for varying or setting aside a freezing order or for supporting arguments for exclusion of property from the scope of a freezing order. It make sense because their evidence is expert opinion evidence and carries more weight that other sworn evidence.
You have to prove on the balance of probabilities that the property is not recoverable property or associated property and that usually means showing how you came by the property or could afford it but every case is different.
The Court can appoint a receiver to sell property where it is found to be recoverable property or order property to be sold to realise a part share.
Freezing Order Served
What do you need to do?
- Find out which property is relates to?
- Consider what exclusions could be applied for
- Consider what evidence there is of related criminal conduct [partner business associate relative]
- Consider how you can prove your ownership?
- Scan copies of documents so that they can be emailed.
For free advice (1 hour free consultation by phone) call now on 0333 011 0515 or use the contact us page.