Home Information Cases Helena Gorbunova v Boris Berezovsky (aka Platon Elenin) (2013)

Skip to content. | Skip to navigation

Navigation
 

Helena Gorbunova v Boris Berezovsky (aka Platon Elenin) (2013)

Summary

There was sufficient evidence of a risk that an individual might dissipate assets in which his former partner claimed to have an interest to justify granting an interim freezing injunction without notice. However, since the evidence did not demonstrate that the individual had a general propensity to dissipate assets, but only a risk that he might dissipate particular assets, it was appropriate to reduce the scope of the assets frozen.

Facts

The applicant (B) applied to discharge an interim freezing injunction which had been obtained against him on a without notice application by the respondent (G).

G had been B's long-term partner. G brought proceedings against B and seven co-defendants claiming, inter alia, interests in two French properties, in the proceeds of sale of a property in the United Kingdom, and in an amount paid in settlement of unrelated litigation. G applied without notice for an interim freezing injunction against B and his co-defendants; her application was accompanied by a statement alleging that there was a risk that B would dissipate his assets. The injunction froze B's assets up to £200m, and restrained him from dealing with the French properties, the net proceeds of sale of the UK property, and the settlement proceeds. G undertook to serve the order on B and his co-defendants as soon as was reasonably practicable.

B submitted that (1) there was insufficient evidence to justify granting the injunction without notice; (2) G was in breach of her undertaking to serve the order as soon as reasonably practicable because she could have served it on him on the same day that the injunction was granted.

Held

(1) Whilst it was true to an extent that the order was highly intrusive, there was nothing significantly more intrusive about it when compared to other such orders that were regularly granted. The injunction was not so particularly onerous or intrusive that it merited a particularly high standard and quality of evidence. G's statement in support of the application, though not the clearest or in the most desirable compliance with CPR r.25.3(3), was not unsupported by particulars and was sufficient in principle, CEF Holdings Ltd v Mundey [2012] EWHC 1524 (QB), [2012] I.R.L.R. 912 considered. However, so far as G's evidence of a risk of dissipation was concerned, it did not go as far as it needed to in order to obtain full freezing order relief as opposed to partial relief: it did not support G's case so far as it depended on B's general propensity to dissipate his assets. Nevertheless, G's evidence in relation to the particular properties and the settlement proceeds justified an averment that, if given notice, there was sufficient risk that B would take pre-emptive steps in relation to those assets. Accordingly, the sufficiency of the evidence that B might dissipate those particular assets justified granting G's application without notice (see paras 20, 38, 41-42, 46 of judgment). (2) G had not breached her undertaking. The order was made on the footing, albeit not expressed in the order itself, that B and his co-defendants would be served together. G's undertaking to serve as soon as practicable did not require her to serve the respondents as and when she could. Since the respondents could have not have been practicably served together before the date that they were, there was no breach of the undertaking. In any event, even if there had been a breach because B could have been served earlier, such a breach would not have been sufficient to justify discharging the order (paras 53-55). (3) In light of the court's findings that G's evidence only showed a risk of dissipation in respect of the particular assets rather than a general propensity to dissipate, the scope of the amount frozen in the injunction required reconsideration. G had explained that the £200m figure was arrived at by assuming wrongful disposals of the various assets to the tune of the full claims that G would have in relation to them. As well as the proprietary claims, G's claims included a contractual claim and a claim on behalf of her children. Neither the potential contractual or family claim should have been included in the order, and so the scope of the frozen amount was reduced to omit those claims. G's evidence was that her interest in the proceeds of sale of the UK property had already been dissipated; if that was correct then there would be no funds on which any injunction could bite, and so the restraint in respect of those proceeds was removed from the order. The restraints on dealing with the other extant assets, namely the French properties and settlement proceeds, remained in the order (paras 56-58).

Application refused

Chancery Division
Mann J
Judgment date
18 January 2013
References

LTL 14/2/2013 : [2013] EWHC 76 (Ch)

Practice areas