Fourie (Appellant) v. Le Roux and others (Respondents)
43. In summary, I would dismiss Mr Fourie's appeal so far as the discharge of the Park J freezing order and the award of indemnity costs are concerned, but I would set aside the deputy judge's directions, in paragraphs 4 to 9 (inclusive) of his order of 30 September 2004, for the enforcement of the cross-undertaking.
LORD RODGER OF EARLSFERRY
44. I have had the advantage of considering the speech of my noble and learned friend, Lord Scott of Foscote, in draft. For the reasons which he gives I too would dismiss the appeal and make the order which he proposes.
45. I should wish to associate myself, in particular, with the remarks of my noble and learned friend, Lord Bingham of Cornhill, about the desirability of not weakening the safeguards which have been developed to protect defendants against possible misuse of Mareva injunctions or freezing orders. Here, as Lord Scott shows, it is all too clear that, at the time when he made the application to Park J, the claimant had neither brought proceedings nor worked out what proceedings he was going to bring to which the freezing order would be relevant. That being so, one of the important safeguards was missing and so, even if he had the power to do so, the judge ought not to have granted the order at that stage. It was accordingly right for the deputy judge to discharge it - even though, shortly afterwards, when a claim form was produced and the claimant undertook to issue and serve particulars of claim within 7 days, he himself made a freezing order which differed only in the amount of the protection.
46. Whatever the exact scale of the difference may be in any particular case, an order for indemnity costs does, and is intended to, weigh more heavily on the party against which it is made than an order for costs on the standard basis. I share the doubts expressed by others as to whether the order for costs on this higher scale was appropriate in the present case, but I too have reluctantly come to the view that it is not a matter with which the House can properly interfere.
47. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend Lord Scott of Foscote, with which I agree, and for the reasons he has given I would make the order which he proposes.
48. I share his unease about the strangeness of the position, where the deputy judge discharged the freezing injunction made by Park J and continued by Judge Norris, then within a matter of hours made another order of like nature substituting a different sum as the limit of protection. There is a considerable air of artificiality about an appeal which centres round the correctness of the deputy judge's action in discharging the earlier order. That unreality is not decreased by the fact, as Lord Scott has clearly demonstrated, that the decision of the deputy judge and that of the Court of Appeal which upheld it were based on a flawed approach to the issue of the propriety of the injunction granted by Park J. I was during the hearing before the House attracted to the view that it would be desirable, in order to avoid injustice, to decline to apply the rule in The Siskina rigidly and to allow the appeal. I am persuaded by your Lordships, however, of the importance of maintaining the safeguards to defendants provided by the network of rules which the courts have developed in granting Mareva injunctions. I therefore must agree that, notwithstanding my reservations, the freezing order was wrongly made by Park J on 9 July 2004 and that it was proper to discharge it.