English Courts Possess Powerful Tools for U.S. Litigation

This article focuses on two potent interim remedies that an English court can grant in aid of U.S. court proceedings: (1) obtaining evidence or documents from a witness/non-party resident in England or Wales through the 1970 Hague Convention, and (2) obtaining injunctive relief in the form of a Worldwide Freezing Order from the English court over parties or assets resident within or outside of England.

The most common types of evidence sought through the Hague Convention are depositions and disclosure of documents, which can be obtained with a Letter of Request acquired through an application to the English court. For an LOR to be enforceable in England, the U.S. attorneys will need to send it to English solicitors who will then apply, without notice, to the English court for an order to give it effect.

A freezing order is an interim injunction that restrains a party from dealing with or disposing of its assets with the intention of making itself judgment proof. The authors list common pitfalls to watch out for when making an application for a freezing order in aid of U.S. proceedings. The applicant must show a real risk that a judgment made in its favor by the U.S. court will go unsatisfied if the defendant is not restrained by the injunction. There must be solid evidence of a risk of dissipation. The threshold is high and, as mischievous defendants tend to dissipate their assets secretively, often difficult to prove.