BVI Commercial Court discharges a worldwide freezing order for breaches of full and frank disclosure obligations

Following a handing down in March 2025, judgment has now been published in Eletson Corporation v Levona Holdings Ltd BVIHCM2024/0111, discharging a worldwide freezing order obtained by the claimants without notice.

Notably, the return date was listed for 3½ days, the Court observing that it was a “complex and voluminous matter [which] entails greater length, in terms of everything, for this return date than for many plenary trials, even in this BVI Commercial Court”.
As is well known, an applicant who proceeds without notice is bound by the twin duties of fair presentation of the application and making full and frank disclosure of all relevant material. In a detailed reserved judgment, Wallbank J held that the claimants failed to do so, including amongst other things in the following respects: (1) there was no genuine need for a without notice application (judgment at [163]; [181]); (2) the claimants were forum shopping instead of seeking relief in New York where they could and ought to have sought it ([200]); and (3) a misleading narrative of foreign proceedings was presented to the Court ([196]-[199]). The judgment reinforces several important points of practice for fraud practitioners involved in seeking or defending applications for worldwide freezing orders.

Stephen Cogley KC and Kajetan Wandowicz appeared for the successful defendants (respondents to the WFO), instructed by Conyers and Stephenson Harwood.