Candy & Ors v Holyoake & Anor

Candy & Ors v Holyoake & Anor

The judge applied the wrong legal test by accepting a lower threshold of risk for a notification injunction than for a conventional freezing order. The evidence did not establish a real risk of dissipation by any appellant. The judge erred in excluding further evidence relevant to risk and balance of convenience. The insurance policy offered as fortification was not in a reasonably satisfactory form, as there remained a real risk the insurer could avoid liability for fraud. The notification injunctions and the acceptance of the insurance policy as fortification were set aside.

Parties
Appellant/defendant: Nicholas Anthony Christopher Candy; Appellant/defendant: Christian Peter Candy; Appellant/defendant: CPC Group Limited; Respondent/claimant: Mark Alan Holyoake; Respondent/claimant: Hotblack Holdings Limited
Jurisdiction
England and Wales
Judgment Date
28 February 2017
Procedural Posture
Civil Appeal / Appeal From High Court to Court of Appeal
Outcome
Appeal allowed; notification injunctions and fortification order set aside; any renewed application for fortification remitted to Chancery Division.
Legal Topics
Freezing Orders, Notification Injunctions, Fortification of Undertakings, Risk of Dissipation, Case Management, Insurance as Security
Civil Procedure Injunctions Commercial Law Freezing Orders Notification Injunctions Fortification of Undertakings Risk of Dissipation Case Management +1 more

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Parties

Nicholas Anthony Christopher Candy

Appellant/defendant

Christian Peter Candy

Appellant/defendant

CPC Group Limited

Appellant/defendant

Mark Alan Holyoake

Respondent/claimant

Hotblack Holdings Limited

Respondent/claimant

Procedural Posture

Civil Appeal / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 What is the correct threshold of risk of dissipation required for a notification injunction?
  2. 2 Was the notification injunction properly granted on the evidence?
  3. 3 Should further evidence have been admitted at the second hearing?

Ratio Decidendi

The judge applied the wrong legal test by accepting a lower threshold of risk for a notification injunction than for a conventional freezing order. The evidence did not establish a real risk of dissipation by any appellant. The judge erred in excluding further evidence relevant to risk and balance of convenience. The insurance policy offered as fortification was not in a reasonably satisfactory form, as there remained a real risk the insurer could avoid liability for fraud. The notification injunctions and the acceptance of the insurance policy as fortification were set aside.

Court Disposition

Appeal allowed; notification injunctions and fortification order set aside; any renewed application for fortification remitted to Chancery Division.

Orders

  • Notification injunctions of 8 April and 29 April 2016 set aside.
  • Order accepting insurance policy as fortification set aside.