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A freezing injunction (also known as a freezing order) will usually contain a provision expressly allowing you the defendant to apply to discharge the order. This application should be made at the return date (normally 7-14 days after the “without notice” hearing date when the injunction was granted), and if more time is required an adjournment of the return date hearing should be sought. If you agree at the return date hearing that the order should continue, then it can only be discharged if there is a material change in circumstances. 

The grounds for discharging a freezing injunction are that the claimant does not meet the criteria for having obtained it, or they have not complied with their duty of full and frank disclosure and failed to tell the Court some material fact at the without notice hearing, which would have lead the judge to decline to make the order. 

There are tactical considerations involved in considering whether to apply to discharge. These include whether the Court is likely to simply make a new order; whether you want to be forced to set out your case at a very early stage and under time pressure; whether your resources are best deployed in making such an application; the likely impact of the order on how you are viewed by the Court; and whether the injunction is seriously hampering your ability to carry on business or conduct the litigation.

 

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