Using information obtained

Dadourian Group International Inc (a company incorporated under the laws of New York) and others v Simms and others [2006] EWCA Civ 1745

The threat of contempt proceedings is more likely to motivate a person to give information frankly if the court is willing to give permission for the use of information obtained under a freezing order in an appropriate case than if the court is prepared only to give permission to use that information in contempt proceedings in exceptional circumstances. The court is not required to find that exceptional circumstances exist before it gives permission. The principle applying to the grant of permission to use information provided by the party under a freezing order in contempt proceedings against that person in a case such as the present is that it should be just and convenient for that information to be so used for the purpose of enforcing or policing the freezing order. The court would need to consider all the circumstances of the case. The application for permission should be on notice to the party affected, and it should be supported by witness statements which put in evidence all the relevant information that the court needs in order to consider whether to exercise its discretion to grant permission to use information obtained under the freezing order. The court should consider the purpose that the party seeking to use information obtained under the freezing order had in seeking to bring contempt proceedings. The claimants were seeking to cure the deficiencies in the information provided by the defendants pursuant to a freezing order; the court’s approach might be different where the party who had obtained the freezing order simply wanted to bring contempt proceedings in order to persuade the court to impose a sanction on the subject of the freezing order for his non-compliance. The court would in general also need to consider whether use of any part of the examination in the contempt proceedings could be said to be unfair. If, for example, the party who had obtained the freezing order used the cross-examination to extract admissions from the person cross-examined on the motive for concealment rather than the location of assets, then the court might consider that it would be unfair to the party cross-examined to allow evidence of the cross-examination, or at least the relevant part of the cross-examination, to be used in the contempt proceedings. In the present case, the judge had been fully justified in releasing the claimant from its undertaking. Among other things, he had noted that there had been discrepancies in the disclosure provided by the defendants and that the claimants’ counsel had submitted that the purpose of the contempt application was to obtain full disclosure rather than to punish a breach.