The jurisdiction of the courts to grant freezing orders is to be found in s. 37(1) & (3) of the Supreme Court Act 1981. Section 37(1) states: "The High Court may by order (whether interlocutory or final) grant an injunction... in all cases in which it appears to the court to be just and convenient to do so."
Section 37(3) states:
"The power of the High Court under subsection (1) to grant an interlocutory injunction restraining a party to any proceedings from removing from the jurisdiction of the High Court, or otherwise dealing with, assets located within that jurisdiction shall be exercisable in cases where that party is, as well as in cases where he is not, domiciled, resident or present within that jurisdiction."
The need to have subsisting proceedings to which the freezing order could be ancillary, or an undertaking to commence such proceedings immediately, was re-iterated by the House of Lords in Fourie-v-Le Roux [http://hefinrees.wordpress.com/2010/04/20/freezing-injunctions-weapon-for-commercial-litigator#FOURIE_v_LEROUX]. In that case, the liquidator of two South African companies applied to the High Court in London without notice for a freezing order to be made against two individuals and a number of companies. At the without notice hearing the liquidator stated that he was "intending to proceed in South Africa in terms of statutory inquiries and... various claims would be formulated."
The High Court granted the application for a freezing order but this was overturned by the Court of Appeal which held that the court had no jurisdiction to grant a freezing order in circumstances where the applicant had no intention of issuing proceedings immediately or almost immediately. The House of Lords upheld the Court of Appeal decision. In the absence of the commencement of substantive proceedings, or an undertaking to do so, the court has no jurisdiction (unless the exception provided by s. 25 CJJA applies).
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