Introduction
Once a serious economic criminal learns that most of his concealed wealth has been frozen in multiple jurisdictions; that raids to search for and seize his confidential accounting, company and trust records have taken place in numerous locations; that his principal accountant has been examined under oath about the location and manner of holding of his liquid assets 'at once;' that a court has ordered him to deliver-up his passport, swear to an affidavit disclosing the nature and extent of his assets worldwide (and that he has seven days to deliver such an affidavit to the court), and has injuncted him from leaving the jurisdiction of the court pending the final outcome of the litigation – and that all of this activity took place on the same day across fifteen time zones, there will be a reaction.
And that reaction could well involve rage, anger, cunning, the massing of resources, and speed. The very best and most expensive team of lawyers, investigators, media consultants, forensic analysts, counter-intelligence operatives and others may be assembled by the defendant.
The Set-Aside Motions.
And then it starts. The inter partes phase of the process may commence with a dizzying array of emergency applications for:
- an order requiring the plaintiff to post security for
costs;
- an order requiring the plaintiff to post security in
support of the plaintiff's cross-undertaking in
damages given to the court as a requirement of the grant of
ex parte relief freezing assets;
- an order disqualifying plaintiff's counsel on
numerous grounds, involving counsel's alleged
participation in an investigation that was unlawfully
conceived of and implemented;
- an order for sanctions against the plaintiff and his
counsel;
- an order disgorging the plaintiff of all confidential
records belonging to the defendant which were allegedly
obtained by unlawful means and by deceit on the courts
involved; and
- an order setting aside the asset freezing injunction(s)
on numerous grounds including material non-disclosure by the
plaintiff at the ex parte hearing that led to the
freezing of the defendant's assets.
In addition, the plaintiff and the senior members of his team of professionals may be sued by the defendant and his family for damages sounded in (a) trespass of private property (in relation to the plaintiff's investigators' trash collection activities), (b) violation of the defendant's (and his family's) right to privacy and (c) defamation of character.
These applications and law suits may come in waves as the defendant's team learns more facts about how the inquiry was conducted, its depth of information and material, the many ex parte discovery applications that led to the asset freeze, and its jurisdictional breadth and duration.
The defendant's team may launch a comprehensive and energetic counter-inquiry to obtain information on the plaintiff, his team and the investigation. Special measures will need to be put into place by the plaintiff's team to protect its information and to anticipate what covert measures it may be facing.
Holding the Freeze – A Case Study.
We shall present a case study based on a matter that the authors had significant involvement in, as a basis for discussing this topic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
