The Supreme Court held that the rights to draw down were “assets” for the purposes of the Order. In particular, the respondent’s contractual rights in the loan agreements to direct the lender to pay the amounts drawn down to third parties were held to constitute dealing with the lender’s assets as if they were the respondent’s own, within the meaning of the second sentence of the relevant paragraph. The court considered the relevant terms of the loan agreements, finding that the respondent had an “unfettered” discretion to use the proceeds of the agreements as he wished, including an express power to direct the lender to transfer proceeds to third parties.
The Supreme Court also held that the extended definition of “asset” set out in the second and third sentences of the relevant paragraph (which do not appear in the pre-2002 form of freezing order), extended the meaning of “asset” to assets which the respondent did not own legally or beneficially, but over which he had control. Without the extended definition, the right to draw down under the loan agreements would not be an “asset” under the Order. In considering the meaning of “asset”, the Court also commented on the application of definitions used in the general law. It held that that while the rights under the loan agreements were likely to be considered “assets” in ordinary legal parlance, “asset” had to be considered in the context of the relevant authorities relating to freezing orders, which did not support the proposition that the right to draw down was an “asset”.
The Supreme Court also provided general guidance on construction: freezing orders are “to be restrictively construed”, in accordance with the principle that, in view of the penal consequences of breach of a freezing order by the respondent, orders should be clear and unequivocal and strictly construed. It held that the “flexibility principle”, the principle that the jurisdiction to make a freezing order should be exercised in a flexible and adaptable manner, had no role in construction; the sole question for the Court is what the freezing order means. It endorsed the approach taken by the Courts to date, which was to approach construction cautiously, while recognising that the language contained in forms of freezing order has gradually been extended.