The Court of Appeal has clarified the requirements to be satisfied before obtaining a freezing injunction, affirming an attainable merits threshold is to be preferred over a more stringent alternative. Any perceived tilt in favour of prospective applicants, however, is tempered by a heightened emphasis on the requirement for any potential order to be “just and convenient”. In this insight, Rachel Ziegler and Sanjay Lohano examine the Court of Appeal decision in Dos Santos v Unitel S.A., providing practical insights for prospective applicants looking to utilise one of the law’s so-called “nuclear weapons”.

In February 2023 ClientEarth issued a derivative action against Shell’s 11 directors. ClientEarth alleged that the directors had breached their duties under the Companies Act 2006 (CA 2006) by failing to adopt and implement an energy strategy that aligned with the Paris Agreement on Climate Change 2015 to limit global warming to 1.5°c. Given that it was bringing a derivative claim on behalf of the company, ClientEarth needed to obtain the permission of the court before the action could proceed.  The application was considered on the basis of the papers before the court without the court hearing oral submissions.  On 12 May 2023, the judge refused permission for the claim to proceed. The judge made several key points in his judgment which will be pertinent to future activist shareholder derivative actions.

The English courts have sought to lead the way in adjudicating crypto-related disputes and other technological matters in an international context. Recent decisions have demonstrated the English courts’ willingness to assist victims of crypto theft, and the ability of the English legal system to adapt in order to remain an effective jurisdiction for cases involving crypto fraud. In particular, recent decisions have established that: Software developers may owe a fiduciary duty to owners of crypto; New jurisdictional gateways are effective to expand the English courts’ jurisdictionto allow claimants to secure information orders against non-parties based overseas; and Service out of the jurisdiction may be permitted where there is a theft of crypto assets originally located in England but subsequently transferred abroad.

The Supreme Court of Gibraltar this week found in favour of our clients and dismissed an application by the defendants to strike out our clients’ claim against them on all three grounds relied upon by the defendants.  Our clients’ claims - which, after this week’s success, will now continue against Hassans law firm and two of Hassans’ partners - are premised on allegations of dishonest assistance.  At trial, the court will ultimately decide whether Hassans and the named partners dishonestly (and with full knowledge of the circumstances) assisted one of our clients’ former directors, Joseph Ackerman, unilaterally and fraudulently - without the knowledge and consent of his co-director, Naomi Ackerman – to effect loans on uncommercial terms from their subsidiaries to other entities in which Mr Ackerman had a personal interest in breach of his fiduciary duties to our clients.     In reaching its decision to dismiss the defendants’ strike out application, the Supreme Court of Gibraltar grappled with the thorny and very much current issue of when a claim involving allegations of fraud is time-barred.  The judgment is of relevance to English practitioners as the relevant provisions of the Gibraltar legislation mirror section 32(1)(a) of the English Limitation Act 1980:  the provision which postpones the limitation period in cases of fraud.

Our insight into a recent judgment of the Court of Appeal:  the judgment provides valuable analysis from the Court of Appeal as to the legal principles and the policy considerations around what constitutes an abuse of process as well as a warning as to the limits to a party’s entitlement to appeal as of right in contempt matters.