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Defraying Legal Expenses from Property Freezing Orders:  SOCA v Azam [2013] EWCA Civ 970

In SOCA v Azam [2013] EWCA Civ 970 the Court of Appeal held that where a person who was the subject of a Property Freezing Order under s.245A of POCA 2002 applied under s.245B for the order to be varied so as to permit him to apply some of his assets which were the subject of the order in paying for his legal expenses, there was no specific burden of proof requiring him to prove that there were no other available assets which could be used to meet those expenses.  

The correct approach was for the court hearing the application to decide whether the applicant had shown that, in all the circumstances, it was just to permit him to use the funds to meet his legal expenses.   If the court was satisfied on the evidence that there were other available assets which might be used, it would not allow the assets subject to the PFO to be used.   However, if the court was not so satisfied, the question was whether it was likely that there were other available assets available.   In cases where the evidence left the court in doubt, but with some specific grounds for suspicion that the applicant had not disclosed all that he could and should about his assets, then the question might be resolved against him.   If, on the other hand, the evidence did not provide any such specific indications or grounds for suspicion, then even if the court rejected the applicant’s evidence as unreliable, the court should not resolve the impasse against the applicant on the basis that it was for him to prove positively the absence of available assets.

For the judgment, click here.

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Date: 31/07/2013

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