Neutral Citation Number: [
 2016]
  
EWHC
  
1695
  (QB ) 
  No. FJ65/1 5 
IN THE HIGH COURT OF JUSTICE  
QUEEN'S BENCH DIVISIO N 
 
  Royal Courts of Justice  
 
  22nd June 
 2016 
B e f o r e :  
MR. JUSTICE PICKE N 
____________________  
 CYPRUS POPULAR BANK CO. 
LIMITED  Claimant  
 - and -  
 ANDREAS VGENOPOULOS & ORS.  Defendants  
____________________  
MR. C. SAMEK QC and MR. J. MCWILLIAMS (instructed by DLA Piper 
LLP) appeared on behalf of the Claimant.  
MR. A. MALEK QC and MR. J. EVANS (instructed by Three Crowns LLP) 
appeared on behalf of the Defendants.   
____________________  
HTML VERSION OF JUDGMENT
 
____________________  
Crown Copyright ©  
MR. JUSTICE PICKEN:  
Introduction  
1. In this matter, I am handing down judgment today in relation to certain 
arguments which I heard on 10 June and then also on 17 June - that is, the 
Friday before last and last Friday.  
2. The judgment is concerned with the enforceability of a free zing order made in 
Cyprus - that is, the CFO - initially in May 2013 on an ex parte  basis and then 
after a without notice hearing in May 2014. The details are set out in my 
judgment and I do not repeat them here, even though that judgment will only 
actuall y be handed down after this ruling has been given because of concerns 
which underpin the present application by the claimant. Those concerns are 
essentially that, once the judgment has been handed down, the parties having 
had sight of the judgment in draft  of course, immediate steps will be taken to 
dissipate assets in this jurisdiction, my having decided in the judgment that the 
"judgment" for the purposes of the Judgments Regulation - that is, the CFO in 
the present case - in respect of which the Registra tion Order was made by 
Master Leslie in early February 2015 is not presently fully effective and 
enforceable. I have decided also that "measures of enforcement" for the 
purposes of Article 47.3 of the Judgments Regulation include service of the 
CFO and the  Registration Order made in respect of it on third parties in this 
jurisdiction.  
3. The application, in these circumstances, is for a domestic freezing order 
pursuant essentially to Articles 47.2 and 47.3 of the Judgments Regulation. I 
do not set out the ter ms of these provisions here. They are set out in the 
judgment which I shall hand down after giving this ruling.  
4. The application is made in circumstances where, as I have pointed out in my 
judgment and as Mr. Malek highlights in his submissions before me o n 10 
June, the claimant has to date made no application for "protective measures" 
notwithstanding that Article 47.3 expressly permits such an application to be 
made and notwithstanding also that, back in February 2015, Master Leslie 
specifically raised wit h Mr. Samek whether the claimant ought to be applying 
pursuant to Article 38 of the Judgments Regulation for a domestic freezing 
order rather than, or perhaps in addition to, the Registration Order.  
5. The application is described as being required in the li ght of my judgment, in 
particular because of a concern that, were UBP to learn of what has been 
decided and indeed other parties, instructions will be given to UBP to make 
payments out of the accounts in London held at UBP by the defendants or 
certain of t hem, and that those instructions will likely be followed, so meaning 
that money is paid out.  
Jurisdiction  
6. Mr. Samek submits that I have no discretion in the matter and that the 
claimant is entitled to the relief sought as of right, as he puts it. He makes  this 
submission based on certain passages in the Capelloni  case. Again, I have 
given the reference in my main judgment. He also relies on the Court of 
Appeal decision in Banco Nacionale  and the reference to that case is also set 
out in my main judgment. H e suggests that refusal of relief would be 
incompatible with the Judgments Regulation and that I should therefore grant 
the relief without more ado. Mr. Samek took me to the Capelloni  case at some 
length. It is not feasible in this ex tempore  judgment to r efer to everything to 
which I was taken. I propose instead to concentrate on the most important 
passages in the judgment of the CJEU in that case. These start at paragraph 16 
of the judgment, where the CJEU addresses the question of whether the grant 
of pr otective measures under Articles 47.2 and 47.3 - actually, at that time, the 
predecessors to those provisions, as set out in Article 39 of the 1968 
Convention - is subject to the procedural law of the domestic court concerned. 
The court said this at paragr aph 16:  
"However, the Convention confines itself to regulating the procedure for 
obtaining authorisation for enforcement but contains no provisions 
concerning enforcement itself which remain subject to the municipal law of 
the court dealing with the matte r …".  
7. The court then continued at paragraph 17 as follows:  
"In this context, Article 39 governs the rights of the party who has sought and 
obtained authorisation for enforcement during the period for appeal laid 
down in Article 36 and until judgment is gi ven on the appeal".  
Mr. Samek highlights in this latter context the reference to "the rights of the 
party"  and also the reference by the court to Article 39 of the 1968 Convention 
governing those rights. He suggests that the same approach should be adopted  
in relation to Article 47 of the Judgments Regulation and the same focus 
therefore ought to be on "the rights". He suggests that this shows that the 
applicant is entitled to protective measures under Article 47.2, and indeed 
Article 47.3, so that there is  no discretion on the part of the domestic court or, 
as described in paragraph 16, "the court dealing with the matter" , to refuse 
relief if the situation is that the protective measures concerned must be 
obtained through the relevant court.  
8. At paragraph 1 8, the CJEU went on as follows:  
"As the first paragraph makes clear, during this period, the party in question 
cannot proceed with measures of enforcement strictly so -called but must, if he 
considers it necessary, confine himself to taking protective meas ures against 
the property of the party against whom enforcement is sought. As the second 
paragraph states, the power to take such protective measures arises from the 
decision authorising enforcement".  
Mr. Samek emphasises in this context the reference to "if he considers it 
necessary" , submitting that this again this shows that the applicant has an 
entitlement, as Mr. Samek would characterise it, to take protective measures, 
not merely an ability or power or right to apply to the domestic court for an 
order  to be made.  
9. Then, at paragraphs 19 and 20, the CJEU continued as follows:  
"19. The manifest purpose of this provision is to enable the party who has 
obtained authorisation for enforcement, but who cannot yet proceed to take 
enforcement measures, to prevent the party against whom enforcement is sent 
from disposing of his property in the meantime so as to render future 
enforcement unsuccessful or even impossible.  
20. However, as in relation to enf orcement proper, also with regard to the 
protective measures referred to in Article 39, the Convention confines itself to 
stating the principle that the party seeking enforcement may proceed with such 
measures during the period indicated in that Article. O n the other hand, the 
Convention leaves the task of settling any matter which is not the subject of 
specific provisions in the Convention to the procedural law of the court in 
question".  
Again, Mr. Samek submits that these passages underline the entitlemen t, as he 
puts it, to obtain protective measures (in the current context, a freezing order), 
rather than a power or right merely to ask the court to make such an order.  
10. Mr. Samek then makes reference also to paragraphs 24 and 25 of the judgment 
as follows:   
"24. As the Commission has rightly stated, Article 39 makes it unnecessary for 
the party who has obtained authorisation for enforcement to obtain a specific, 
separate court authorisation for the purpose of proceedings with protective 
measures during the period indicated in that Article, even if such 
authorisation would normally be required by the internal procedural rules of 
the court in question.  
25. This conclusion follows from the wording of the second paragraph of 
Article 39 itself which states that t he decision authorising enforcement shall 
carry with it the power to proceed with protective measures. This phrase 
shows that the right to take such measures has its origin in the decision 
authorising enforcement and therefore a second decision which, in a ny case, 
could not question the existence of the right would not be justified".  
Mr. Samek relies also on the following paragraph, paragraph 26, to the same 
effect. He stresses again that this is the language of entitlement and highlights 
in particular how,  in paragraph 25 in the first sentence, there is a reference to 
"the power"  as described in Article 39 which, in the following sentence, is 
characterised as being "the right" , so demonstrating, he suggests, that 
essentially there is no distinction between a power, on the one hand, and a 
right, on the other. He further submits that the passages show that the domestic 
court has no right to review the obtaining of any order by way of protective 
measure.  
11. Other passages are relied upon by Mr. Samek, but these seem to me to be the 
key passages. He submits that, in these various passages, the CJEU was not 
agreeing with Advocate General Slynn when he said what he had to say in the 
opinion which precedes the report of the judgment of the court. Specifically a t 
page 392, when dealing with the first part of the first question which I have 
already described, Advocate General Slynn said as follows:  
"Subject to these matters, the procedure on an application for protective 
measures and the factors to be taken into account - for example, the relevance 
of urgency and the risk of the judgment debtor's assets being removed from the 
jurisdiction - are for the national court to decide under national law and 
practice".  
12. Similarly, as regards the second aspect of the first q uestion which I have not 
yet set out but which will be apparent from what I am about to read, Advocate 
General Slynn said as follows at the top of page 393:  
"I agree that the wording of the Convention does not oust the rules of 
municipal law on this matte r, either expressly or by necessary implication. I 
therefore accept the view put forward by the Commission and the United 
Kingdom. However, for the reasons that I have already given, during the 
confirmatory procedure, the court may not require the judgment  creditor to 
make out a prima facie case on the substance; nor may it have regard to 
matters which might preclude a judgment of another contracting state being 
enforced under the Convention".  
13. Similarly, as regards what was described as the second question,  the Advocate 
General said as follows at the foot of page 393, going over to the top of page 
394:  
"In my opinion however, the correct reading of the Article is that during the 
period provided for appealing against an order made under Article 31 no 
measure  of enforcement may be taken, other than such protective measures 
against the property of the party against whom enforcement is sought as are 
available under national law. A plaintiff who has obtained an order for 
enforcement may, under the Convention, pro ceed to those measures by 
whatever route national law provides. If national rules enable him, for 
example, to seize property without further order, he may do so. If national 
rules require a further order of the court, such an order must be obtained 
either from the court authorising enforcement or from some other competent 
court.  
In some Member States, such protective measures may be made in precise 
terms in respect of specific property and subject to well established conditions. 
They may vary according to t he circumstances. Some property may not be 
available for seizure as a matter of national law. I cannot see that the 
Convention has abolished the power of the national courts to go into these 
questions by enabling protective measures to be automatically tak en, merely 
because an enforcement order has been made. … I therefore take the view that 
whether a further application is needed for protective measures is a matter of 
national law".  
14. Lastly, dealing with what was described as the third question, Advocate 
General Slynn said this later on at page 394:  
"Once again, the United Kingdom maintains that the answer is to be found 
exclusively in national law. The Commission, on the other hand, maintains 
that the rights of the judgment debtor to carry out the protecti ve measures 
subsist throughout the period specified in the opening words of Article 39. I do 
not accept the Commission's view. The primary purpose of the opening words 
of Article 39 is to define the period during which no measures of enforcement 
may be tak en. Article 39 then goes on to provide that, during that period, 
protective measures may be taken. It does not follow however that the 
judgment creditor must be entitled to take such measures throughout the 
period concerned".  
15. I observe that it is not appar ent to me that the CJEU and the Advocate General 
were saying different things, but this is a matter to which I shall return.  
16. Mr. Samek also places reliance on the Banco Nacionale case and the judgment 
of Tuckey LJ, in particular starting at paragraph 18, where this is stated:  
"It is common ground that Articles 47.2 and/or 3 gave BNC the right to take 
protective measures against ETC's property in this country after registration 
pending determination of the appeal. A domestic freezing order was made 
pursuant to these provisions".  
He suggests that this, with its reference to "the right to take protective 
measures" , again supports his submission that a party in the claimant's 
position is entitled as of right to obtain a freezing order from the domestic 
court. Mr. Samek submits that the same point can be discerned from paragraph 
25 of Tuckey LJ's judgment where - and again this is a provision which I have 
set out in my main judgment - Tuckey LJ sought to summarise the effe ct of 
the constituent parts of Article 47.1, 47.2 and 47.3.  
17. Mr. Samek then relies upon paragraphs 44 and 45 of the judgment. These are 
again passages which I have set out in my main judgment, but it is worth me 
repeating them here as follows:  
"44. As the Capelloni case, para.20 makes clear, the Convention and now the 
Regulation confine themselves to laying down the principle that the party who 
has a declaration of enforceability/registered a judgment may proceed with 
protective measures. Matters not covere d by specific provisions are left to the 
procedural law of the court hearing the proceedings. Neither Article 47 nor 
any of the other provisions of the Regulations says anything about the 
character or scope of the protective measure required or indeed abou t the 
need to have any such measures at all. It seems to us therefore that an 
applicant for such measures must take them as he finds them in the 
jurisdiction where he seeks to enforce his judgment so, if a particular measure 
has a certain feature, either t he applicant accepts it or chooses not to avail 
himself of it. In this country, a freezing order is available as a protective 
measure, but it has certain features which include the requirement for an 
undertaking to protect third parties. It does not seem t o us that an applicant 
for this measure can say that he will not give the undertaking and is entitled to 
the measure without it. If this was the case, such an applicant would be in a 
better position than a judgment creditor seeking to enforce an English 
judgment here.  
45. In the Capelloni case, it seems that the judgment creditor was able to 
arrange for protective sequestration of the judgment debtor's property without 
a court order. There is no equivalent right here. The applicant must apply to 
the court f or a freezing order but if for example, as a condition of granting 
such relief, the court required him to prove the claim which gave rise to the 
judgment, that would obviously not be compatible with Article 47. Similarly, 
as in the Capelloni case, the cour t could not impose a time limit on the 
freezing order which was different from that laid down in article 47.3, but 
there is nothing incompatible with the Regulation in saying to an applicant 
who seeks a particular measure in a particular jurisdiction that he must take 
the measure as he finds it or not at all."  
Mr. Samek submits that these passages further demonstrate that the right is not 
confined to asking the domestic court to make an order but is an absolute 
entitlement, subject only to the domestic cour t having the jurisdiction to grant 
the particular protective measure sought by the applicant - in the current case, 
a freezing order - and also subject to the domestic court being entitled to insist 
on the protective measure - in this case, a freezing orde r - complying with its 
procedures, as demonstrated in the Banco Nacionale case by the requirement 
that a particular undertaking should be given in return for the obtaining of the 
order.  
18. Having considered these submissions and the authorities to which I hav e been 
taken, I am driven to the conclusion that Mr. Samek's submissions are not 
correct. In short, I do not agree that the domestic court - in this case, the 
English High Court - has no discretion as to whether or not to grant a freezing 
order which is so rt by way of protective measures, pursuant to Articles 47.2 
and 47.3 of the Judgments Regulation. I am clear, by reference to paragraph 
18 of the Banco Nacionale case, that Tuckey LJ's reference there to the "right" 
needs to be read alongside what he went on to say in paragraph 44 in the 
passage which I have just read out. I have in mind, in particular, the fact that 
Tuckey LJ was clearly making the point in paragraph 44 that an applicant - in 
this case, the claimant - must take the domestic court as it fin ds it or, more 
accurately, as it finds the protective measures which are available in the 
domestic court, including the possibility, therefore, that the domestic court has 
no available protective measures of the sort desired to be obtained by the 
applicant . In view of this, it is difficult to see that it can be right that a Member 
State would be in contravention of the Judgments Regulation by its courts 
applying those measures in accordance with their own conventional principles, 
as applicable to the grant of the relevant relief. The last sentence of paragraph 
44 seems to me also to be especially significant in that Tuckey LJ is there 
saying, as I see it, that the position cannot be that an applicant which has a 
foreign judgment is in a better position than an applicant with an English 
judgment. Tuckey LJ made this point, I acknowledge, by reference to the 
particular issue which was before the Court of Appeal in that case, namely 
whether an undertaking should be included in the freezing order obtained, but 
the point seems to me to have more general application. I see no reason, in 
principle, why a party in the claimant's position with a foreign judgment which 
is registered as an English order should be in a better position than an 
applicant which has an Englis h judgment simpliciter.  
19. I was referred also, in the context of this argument, to certain passages in two 
academic texts, namely Civil Jurisdiction in Judgments, Briggs, 6th Edition, at 
paragraph 7.27, and Dicey & Morris  at pages 779 to 780, specifically 
paragraph 14 -240. Interestingly, the argument which is advanced before me 
today by Mr. Samek is not one which is advocated in either of those academic 
texts. On the contrary, albeit only in a footnote it is fair to point out, in Briggs,  
the following is sta ted at footnote 274, namely:  
"In 119/84 Capelloni v Peltmans [1985] ECR 3147, it was suggested that 
there was a right to obtain such measures, but the truth probably is that there 
is a right to apply and the court has a discretion, which it may exercise i n the 
applicant's favour, to grant the relief applied for".  
This suggests that the view which I have formed, based on the Capelloni  case 
itself and on the Banco Nacionale  case itself, is the right one.  
20. As a matter of principle, I struggle to see that it c an be right that a judge in the 
High Court in this jurisdiction - in the present case, me - should be asked to 
make a freezing order without applying conventional principles to the grant of 
such relief in this jurisdiction. I acknowledge certainly that, as  in any post -
judgment case involving an English judgment or a foreign judgment, a 
freezing order will likely more readily be given when compared with an 
application for a freezing order at a pre -judgment stage, but that is not the 
same thing as saying that  the judge has no discretion in the matter at all. It 
seems to me, by reference to the passage in Dicey & Morris  at paragraph 14 -
240, that this essentially is the point that is there being made. The passage 
concerned reads as follows:  
"Before the expiry o f the time for appealing against the order for registration 
has expired or before such appeal has been determined, the execution of the 
judgment is not possible, although protective measures may be taken. The 
policy is that measures should be available to prevent the judgment debtor 
from being able to frustrate the later enforcement and there is therefore a 
strong presumption in favour of their being granted".  
The reference to there being a strong presumption in favour of the grant of the 
protective measure s seems to me, in all probability, to be a reflection of the 
point I have just made, namely that, in the Article 47 context, the protective 
measures sought relate to a judgment obtained in a foreign jurisdiction and not 
merely therefore to allegations made  in advance of the obtaining of a 
judgment.  
21. Mr. Samek's argument requires, as he confirmed to me when I put the point to 
him during the course of his oral submissions, that it is sufficient for an 
applicant in the claimant's position to come before the Eng lish High Court and 
simply to say that it considers that protective measures are appropriate in the 
form of a freezing order in the present case and say nothing more because the 
court is obliged to give it what it seeks. I cannot accept that this is what t he 
Capelloni case requires should happen. I do not consider that that is what is 
stated in the passages to which I have been taken, whether in the passages of 
the CJEU's judgment itself or in the passages of the opinion of Advocate 
General Slynn. Nor do I consider that, in any event, there is the suggested 
disagreement between the CJEU and Advocate General Slynn in the Capalloni  
case. It would be odd, if there were a disagreement that, nowhere in the 
judgment of the CJEU is that disagreement referred to. No r, in my judgment, 
is what Mr. Samek urges upon me what the Banco Nacionale  case requires. 
Nor, in my judgment, can it be right in principle to approach matters on the 
basis that freezing order relief, a serious form of relief, should emanate from a 
High C ourt Judge in this jurisdiction without that judge himself or herself 
considering the appropriateness of the grant of that relief. In my view 
therefore, whether the relief sought ought to be granted is a matter which 
entails the court applying conventional  principles applicable to the grant of 
freezing order relief.  
Should a freezing order be granted?  
22. Mr. Malek submitted in his skeleton argument that he was in no proper 
position to deal with the application at this hearing, notice having only been 
given of  the application last Thursday at about lunch time and the day, 
therefore, before I was due to hand down judgment in the matter. Mr. Malek 
highlighted in particular how no such application has been made at any 
previous time and specifically how no applicat ion has been made at any time 
after the CFO was obtained in Cyprus in May 2013, initially on an ex parte  
basis at that stage, and thereafter a year later, in May 2014, after a without 
notice hearing. His position, in short, was that the delay in this case is very 
considerable indeed and that, on that basis, the relief sought should be refused.  
23. Mr. Malek's position, when the matter was first raised and when it came 
before me last Friday, was to suggest that I should deal with the application as 
though it we re an ex parte  application, insufficient notice having been given of 
it. Today, which is Wednesday 22 June, the relevant three clear days' notice 
having now been given, it seems to me that it is appropriate, however, that I 
deal with the matter on the basi s that it is a 'with notice' hearing, as opposed to 
a 'without notice' hearing.  
24. As I have indicated, Mr. Malek made the point in his skeleton argument that 
he would wish to serve evidence in response to the application. In the event, 
however, Mr. Malek explained to me today that, having had the opportunity in 
his skeleton argument of making the submissions which he would wish to 
make, he no longer required time within which to serve evidence. He has also 
put before me - and I will come onto refer to it - a witness statement made in 
the context of the appeal against the registration order, so to that extent there is 
evidence from the defendants before me which I can consider on this 
application.  In the circumstances, although I was at one stage inclined to think 
that the correct course would have been to have put this matter off so that it 
could be dealt with at a hearing when Mr. Malek's side had had the 
opportunity to serve evidence and, if nec essary, to grant interim relief in the 
meantime, it seems to me that it is appropriate not to do that, but instead to 
grapple with the application on its merits today.  
25. On that basis, as I have suggested already, three clear days' notice having been 
given,  although only just, I am satisfied that Mr. Samek is right when he 
invites me to treat today's application as being a 'with notice' application and 
not, therefore, an ex parte  on notice application - in other words, to treat today 
as though it is a proper  inter partes  hearing, my having of course heard not 
only from Mr. Samek but also from Mr. Malek.  
26. I come on now to consider whether the freezing order which is sought ought to 
be granted, observing right away that the form of order which is now before 
me has undergone a certain amount of modification since last Friday when the 
claimant, through Mr. Samek, first raised the matter with me. In particular, the 
order no longer seeks ancillary orders requiring the individual defendants to 
inform the claimant's E nglish solicitors, DLA Piper LLP, within 72 hours of 
all of their assets in England and Wales exceeding £5,000 and to swear and 
serve on DLA Piper LLP affidavits setting out that information within seven 
days.  
27. As I have indicated, Mr. Malek's position is that the freezing order which is 
now sought should be refused, not on the basis that no good arguable case 
exists, because he accepts that that had been shown, given that the claimant 
has obtained the CFO in Cyprus, and so that this was not an argument whi ch 
was really available to him, but on the basis that the application is being made 
too late and on the basis also that the evidence of dissipation is deficient and 
not sufficiently solid as to warrant the grant of the relief sought.  
28. I deal, therefore, fi rstly with delay. Mr. Malek submits that the delays in this 
case, which he describes as being unexplained, are a sufficient basis to refuse 
the application. In particular, he submits that the delays, as he puts it, call into 
question the genuineness of the  claimant's belief that there is a real risk of 
dissipation by these defendants on the facts of this case. He goes on to submit 
that the delays also call into question the claimant's true motivation in making 
its applications for what he describes as the d raconian relief of a freezing order 
and, in this context, relying on the first witness statement of Dr. Koretsenis, 
filed in support of the appeal against the Registration Order, an appeal which I 
am due to hear at the end of next month, he characterises t he claimant's 
conduct as being consistent with a claimant seeking to use applications for 
freezing relief, both worldwide and local, to oppress a defendant. Lastly, he 
submits that the court should be wary of excusing or condoning in any way the 
inordinate  and unexplained delay on the part of the claimant in this case. He 
submits that the claimant could have sought worldwide and local freezing 
order relief at any time since at least November 2012, when the claimant 
issued the Cyprus proceedings which have l ed to the making of the CFO. He 
suggests that, if this were what might be described as a normal case, then the 
claimant would have been expected to have sought urgent freezing relief 
shortly before or when issuing those proceedings in Cyprus.  
29. Mr. Malek su bmits that the only explanation given for delay in this case is 
what was said by Mr. Flack, the claimant's then solicitor and so not from DLA 
Piper LLP, in paragraph 35 of the statement which he made in support of the 
application to Master Leslie seeking t he Registration Order. In that paragraph, 
Mr. Flack referred to the delay which had occurred between 23 May 2014, 
when the CFO was renewed after the 'with notice' hearing, and February 2015, 
when the application for the Registration Order was made. Mr. Fla ck referred 
to the reason for the delay being:  
"… primarily because of the bureaucratic internal approval processes of the 
Resolution Authority of LAIKI – i.e., the Central Bank of Cyprus - without 
whose approval LAIKI cannot take any foreign, legal advic e and/or legal 
measures outside of Cyprus."  
Mr. Malek makes the point that this explanation, such as it is, explains only 
part of the delay and, in any event, he suggests, does not really amount to any 
explanation at all. No explanation, Mr. Malek points o ut, has been given for 
other periods of delay, namely as follows: first, concerning the reason why an 
application for freezing order relief was only made in Cyprus on an interim 
basis in May 2013, the Cyprus proceedings having been commenced the 
previous D ecember; secondly, what Mr. Malek describes as the great delay of 
a year between the interim CFO and the final CFO made in May 2014; thirdly, 
the delay between the final CFO being made in May 2014 and the seeking of 
the Registration Order in February 2015 (in relation to that matter and that 
matter alone, Mr. Flack had something to say in paragraph 35 of his witness 
statement, but not a lot) ; and fourthly, the delay in serving the Registration 
Order made by Master Leslie in February 2015 on the defendants in Greece, 
that service only taking place in the third week of February this year and so, 
therefore, a whole year after the order was first made. Mr. Malek also refers to 
the statement of Dr. Koretsenis, which I have mentioned already and which 
was prepare d in the context of the substantive appeal against the making of the 
Registration Order.  
30. Mr. Malek's submission is that, in the circumstances, I should conclude that 
the delay in this case is so considerable and so unexplained that relief should 
be refuse d as a matter of discretion. In this context, Mr. Malek refers to the 
case of Cherney v Neuman  [2009] 
 EWHC
  1743 (Ch), a decision of His 
Honour Judge Wacksman QC, sitting as a judge of the High Court. Particular 
reference is made by Mr. Malek to paragraph 77 of the judgment, where he 
sets out cer tain general points which fall to be made concerning delay in the 
context of applications for freezing orders. In particular, at paragraph 5(a), the 
judge states as follows:  
"If a delay at this stage is prolonged and there is no justification for it, it can 
amount to evidence that the claimant does not genuinely believe that there is a 
real risk of dissipation which requires to be safeguarded against by an 
injunction or that the factors said to demonstrate such a risk are no t as 
persuasive as they first appear".  
The reference to "at this stage"  would appear there to be a reference to an 
application being made for a freezing order after proceedings have been 
commenced and so is apposite in the present case. In addition, I was referred 
to what the judge went on to say in sub -paragraph (vi) as follows:  
"Even if the delay did not entail that there was no risk of dissipation or that 
the claimant should not now be entitled to assert it, it may still feature in the 
overall exercise o f the court's discretion".  
I should mention that Mr. Samek highlights that this paragraph continues as 
follows:  
"Conceivably, it could have had a prejudicial effect upon the defendant, 
although usually any potential prejudice caused by the grant of the inj unction 
itself is catered for by a suitable cross -undertaking in damages or 
modifications to the terms of the injunction".  
31. Mr. Malek, having referred me to this authority and the principles set out by 
the judge in it, goes on to submit in this connection, and by reference to the 
evidence which has been put before me concerning the alleged risk of 
dissipation, that the delay is suggestive of a lack of a genuine belief that there 
is in the present case a real risk of dissipation which needs to be safeguarded 
against. In this connection, Mr. Malek relies on certain observations made by 
Gibson LJ in Thane Investments v Tomlinson  [2003] EWCA Civ 1272  and, in 
particu lar, at paragraph 21 where Gibson LJ said as follows:  
"It is clear on the authorities that what the court must be satisfied about 
before making such an order is that the applicant for the order has a good 
arguable case, that there is a real risk that judgment would go unsatisfied by 
reason of the disposal by the defendant of his assets unless he is restrained by 
the court from disposing of them and that it would be just and convenient in 
all the circumstances to grant the freezing order".  
Mr. Malek places particular reliance on what then follows:  
"It is important that there should be solid evidence adduced to the court of the 
likelihood of dissipation".  
32. Mr. Malek argues that, in the present case, the only matters relied upon 
concern certain pa yment instructions which were given to UBP on 23 
February this year, the day when the CFO and the Registration Order were 
served on the defendants, those being instructions given by the parties which it 
is suggested are, if not the defendants themselves, a re parties closely related to 
the defendants and instructions which relate to a company called Lucca 
Properties Limited. Mr. Malek suggests that these instructions related to the 
transfer of what he described as a trivial amount, although he acknowledged 
when I asked that there is no evidence before me and, therefore, no evidence 
to which he can take me concerning the level of money involved. Mr Malek 
adds that anyway there was nothing at that stage to stop the defendants giving 
such instructions to UBP, gi ven that the CFO was not enforceable at that stage 
in this jurisdiction.  
33. I am not persuaded by those submissions. I acknowledge that, if there were no 
evidence of any risk of dissipation, then the delay which has occurred in this 
case - and in particular the largely unexplained delay - would justify the view 
being taken that no risk of dissipation is actually perceived by the claimant - 
the applicant for the freezing order - to exist. In truth of course, without any 
evidence of risk of dissipation, then, e ven without delay, it would be 
inappropriate to grant freezing order relief. That, however, is not the current 
case since it seems to me that the evidence which I have concerning the Lucca 
Properties instructions is sufficiently, to use the language of Gib son LJ in the 
Thane  case, solid evidence of a dissipation risk, given: first, the coincidence of 
the timing of those instructions; secondly, the fact that instructions were given 
by entities which appear to have links with the defendants; thirdly, UBP's 
response to those instructions which was to proceed on the basis that the CFO 
likely covered the monies concerned; and fourthly, the breadth of the CFO - 
this is related to the third point - which covers, as Mr. Samek reminds me: "All 
of the assets of defend ant … whether these are registered in his name or not, 
whether these are held exclusively by him or jointly, where the defendant … 
has a legal interest in them or is a beneficiary of them"  (the reason I have 
inserted "…" after the reference to the defendan t is because I am reading there 
from a passage concerning the first defendant, but there are equivalent 
paragraphs relating to the other defendants in similar terms). It seems to me 
that, in these circumstances, it is not a sufficient answer for Mr. Malek to 
suggest that there was, as he puts it, "nothing wrong"  with the instructions, 
and at least that this does not represent a sufficient answer for present 
purposes, namely in circumstances where those instructions are being relied 
upon as evidence of a ris k of dissipation. Lastly – and this is really my fifth 
point - I note the role of the solicitors for the defendants, Three Crowns LLP, 
in taking up, as it were, the cudgels in relation to this matter - that is, in the 
wake of the instructions given as rega rds Lucca Properties. I take account of 
the fact that there would appear to be some common representation, so 
indicating the likelihood, in my view, that there is, indeed, some link between 
the Lucca Properties instructions and the defendants in the presen t case.  
34. More generally as regards the Lucca Properties matter, as to the suggested 
triviality of the amounts concerned, as Mr. Malek very fairly and candidly 
acknowledges and as I have already pointed out, there is no evidence before 
me in relation to tha t, and so I can really place no reliance on it.  
35. However, the Lucca Properties matter is not the only matter which is relied 
upon by the claimant in support of its contention that there is a risk of 
dissipation because, as Mr. Andrews in his witness statem ent in support of the 
freezing order application states at paragraph 31.3:  
"Notwithstanding their obligations pursuant to the terms of the Cypriot WFO, 
there are for the reasons I have already explained good grounds to conclude 
that, one, the respondents have failed to disclose assets in breach of the terms 
of the Cypriot WFO and, two, the respondents or others acting on their behalf 
have already attempted to effect transfers of assets caught by the Cypriot 
WFO again in breach of its terms. Indeed, I under stand Dr. Koretsenis, in 
paragraph 9 of his third witness statement in support of the declaration 
application, positively to assert that the first respondent has himself also 
attempted to give transfer instructions to UBP, which would again appear to 
be a breach of the Cypriot WFO".  
I need not, in the circumstances, read directly from Dr. Koretsenis's third 
witness statement, and I should also record that Mr. Malek expressly did not 
accept the accuracy of Mr. Andrews's assertion that any such instructions 
represented a breach of the CFO; that is not accepted by Mr. Malek and I say 
no more about it. What is significant, however, is that the matter is relied upon 
by Mr. Andrews on behalf of the claimant and it seems to me to amount to 
further evidence which is  sufficiently solid for present purposes as to a risk of 
dissipation. That is all that matters for now.  
36. I conclude, therefore, although not without some hesitation, that there is 
sufficient evidence of risk of dissipation which is before me. I ask myself t hen 
whether the delay in this case, and in particular the lack of explanation for so 
much of that delay, changes things. I do not consider that it does. I regard it as 
regrettable, to say the least, that there are in this case periods of unexplained 
delay.  However, I feel unable to conclude that that delay should be regarded as 
undermining the claimant's concern about risk of dissipation, so as to cause me 
to conclude by reference to the Cherney  case and what the judge had to say at 
paragraph 77.5(a), that the delay in the present case and the lack of 
explanation for that delay means that the claimant "does not genuinely believe 
that there is a real risk of dissipation which requires to be safeguarded 
against by an injunction" . The delay between February 201 5 and February 
2016  is, as I have observed in my main judgment, especially curious. 
However, I bear in mind that it was not until this year apparently that Lucca 
Properties was known about, and also that the claimant has, of course, 
throughout apparently been concerned about a  risk of dissipation, as 
demonstrated by the fact that, in May 2013, it sought a CFO in the Cypriot 
courts. That apparent concern, again when weighed in the balance, seems to 
me to point against a conclusion that the delay in this case is consistent with, 
and only consistent with, a lack of concern as to risk of dissipation.  
37. On balance, therefore, but only on balance, I consider that the delay in this 
case ought not to mean that I refuse the freezing order relief which is sought 
and, in that context and by  reference to what is stated in paragraph 77.6 in the 
Cherney  case, I note the fact that no particular prejudice is identified or even 
asserted on behalf of the defendants and so, even viewing delay more 
generally and, as it were, in the round, going to th e overall justice of the case, 
it does not seem to me to be appropriate to refuse the freezing order which is 
being sought on that basis. On the contrary, Mr. Samek's submission that to 
grant the relief in a sense holds the ring seems to me to have some me rit, albeit 
I make it clear that I do not grant the relief exclusively on that basis. It is a 
factor which falls into the mix, but cannot be a substitute, by itself and without 
more, for the need to show a risk of dissipation or a perceived risk of 
dissipa tion.  
38. Nor, lastly, do I consider it appropriate to refuse relief on the basis of what is 
stated in Dr. Koretsenis's first witness statement concerning what the 
defendants regard as the oppressive and wrongful conduct of the claimant. I 
confirm that I have  been taken to certain parts of that statement which confirm 
that that is, indeed, Dr. Koretsenis's view. I note the allegations that are there 
made concerning oppressive behaviour on the part of the claimant, but I am 
not in a position at this juncture to  gauge the strength of those points. They 
will be a matter, as I understand it, for the appeal, the witness statement, as I 
have already observed, having been made in support of that appeal. As to the 
fact that no response has been yet filed to that witnes s statement by the 
claimant, it seems to me that the answer to that is that, for reasons explored 
last week during the hearing which took place on Friday, neither side has 
advanced the appeal. Indeed, it is only now, in the light of certain directions I 
gave last Friday, that the claimant is under an obligation to put in responsive 
evidence to that witness statement.  
Conclusion  
39. For those reasons, I am persuaded that the order should be granted. The terms 
of the order we now need to discuss, but I make it c lear that the order should 
run only until the appeal that is due to be heard at the end of next month and 
logically, it seems to me, until determination of that appeal, but I will hear 
from both parties in relation to that no w