Judgment Hand Down: Astor v Salinas [2025] EWCA Civ 1060

The Court of Appeal (Arnold, Popplewell and Elisabeth Laing LJJ) has dismissed an appeal concerning whether the claimants to a US$400 million fraud claim should have been granted various worldwide freezing orders against four of the defendants. The underlying claim, in essence, concerns an allegation of fraud in relation to a stock loan agreement, in which one of the claimants had transferred his shares to certain of the defendants as collateral for a proposed loan.

The sole issue before the Court of Appeal was whether the claimants had breached the duty to make full and frank disclosure on the without notice applications – and specifically, whether the claimants had failed to present all matters relevant to (i) the claimants’ willingness and ability to meet the cross-undertaking in damages, and (ii) the claimants’ willingness and ability to repay the loan, which was relevant because it was said that they would need to have repaid the loan in order to redeem the shares which had been provided as collateral. (Certain other grounds had been pursued, unsuccessfully, at first instance).

The Court unanimously rejected both complaints. In relation to a claimant’s ability to pay, Popplewell LJ (who delivered the leading judgment) indicated that the critical point was access to funds, rather than whether funds were held in the name of the claimant. His Lordship explained (at [20]) that “Many wealthy people and organisations have an interest in, or access to, funds which are held in the names of other entities through arrangements made for good commercial or tax reasons. If there is no reason to doubt their willingness to meet an adverse payment order, the focus of the inquiry when addressing ability to pay is on assets to which they would have access, however indirectly, not merely those in their own name.”

Popplewell LJ also explained the correct approach to the quantum or value of the claimant’s assets which are relevant to whether they are able to meet the cross-undertaking. His Lordship made clear (at [21]) that, in assessing the possible loss to the defendant, the Court should consider the period of time between the making of the order and the return date, or a date shortly thereafter (in the order of weeks) if the defendant requires time to put in evidence. It is that potential loss for which the claimant will give the cross-undertaking. Accordingly, Popplewell LJ observed that “The task of the judge at the without notice stage…. when granting the injunction and considering whether and to what extent to require fortification of the cross-undertaking, is to assess what loss might realistically be caused to the defendant over this relatively brief period.”

In the present case, the defendants were found to have adopted a “scattergun approach” to their allegations of non-disclosure, in that a substantial number of the matters that were said to have been omitted by the claimants in their full and frank disclosure were described by the Court as being “so far removed from being big ticket items that they could not assist, even on some cumulative basis, in establishing material nondisclosure” (at [18]). As to the remaining items, the Court concluded that there was nothing in the material to show a want of probity on the part of the claimant (which might be relevant to his willingness to pay), nor any reason to doubt the claimant’s wealth.

Accordingly, the appeal was dismissed.

Matthew Abraham and Stefanie Wilkins acted for the successful claimants / respondents on the appeal; Stephen Robins KC, Henry Phillips and Ryan Perkins acted for those parties on the initial applications.

Read the full judgment here.