Table of Contents
Key Points
- The court confirmed that a "good arguable case" standard for freezing orders follows the threshold from "The Niedersachsen case".
- The Court rejected the application of a more stringent three-limb test, reserving it for jurisdictional cases.
- The Court upheld a costs award in favor of Unitel, setting a precedent in contested injunction cases.
The UK Court of Appeal has issued a pivotal ruling on the “good arguable case” standard required to obtain asset-freezing orders, aiming to resolve ambiguity in criteria for freezing injunctions—particularly crucial in high-stakes, international financial disputes.
Background of the dispute
The ruling stems from a case involving Angolan billionaire Isabel dos Santos, who challenged a Worldwide Freezing Order (WFO) obtained by Angolan telecoms giant Unitel S.A. Dos Santos argued that the injunction should necessitate a rigorous three-part test, assessing the strengths of both parties’ cases—a method used in jurisdictional disputes. The Court rejected this approach, reaffirming the traditional “good arguable case” standard established in The Niedersachsen, which has long governed freezing orders. Billionaires Africa previously reported that dos Santos had filed a lawsuit in a London court against Angolan President João Lourenço, alleging conspiracy to seize her assets and pressure the judiciary.
Court analysis and confirmation of standard
The Court of Appeal revisited the “good arguable case” standard, often debated in legal circles. Traditionally, this threshold requires a substantial argument but does not demand a greater-than-fifty-percent likelihood of success. The Court concluded that applying the more complex three-part test used for jurisdictional determinations would create unnecessary complexity and inconsistency in asset-freezing cases. In his ruling, Lord Justice Popplewell explained that the “good arguable case” aligns with the American Cyanamid “serious issue to be tried” principle, which supports swift action to prevent the dissipation of assets, balancing efficiency with fairness.
Costs of freezing orders
The Court also addressed cost implications, noting that freezing orders differ from typical interim injunctions, where costs are usually deferred. In freezing cases, the losing party must pay costs immediately. The Court upheld the cost award to Unitel, emphasizing that dos Santos, having contested every part of the WFO, ultimately lost the appeal. This decision underscores the gravity of contesting freezing orders, with direct cost implications for the unsuccessful party.
This ruling provides critical clarity for international litigants seeking asset-freezing orders, reaffirming the simpler “good arguable case” standard under The Niedersachsen and enabling claimants to secure freezing orders efficiently in urgent situations. The decision promotes consistency and effectiveness in international financial disputes where asset protection is essential.
