Dispute Resolution analysis: Mr Justice Henshaw, sitting in the Commercial Court, confirmed that the court cannot compel an applicant to provide additional fortification of its undertaking in damages (also known as a cross-undertaking) after a freezing injunction has been discharged. It must be sought while the injunction is still in force. Undertakings and fortification are standard features of freezing injunctions and are the ‘price’ a claimant chooses to pay in return for the grant of an injunction. Imposing additional fortification retrospectively would deprive the applicant of the opportunity of considering whether to assume that burden as the price of obtaining the freezing injunction. An alternative attempt to invoke CPR 3.1(5) to obtain fortification post-discharge of an injunction will also fail. The judge held that CPR 3.1(5) cannot override common law rules on undertakings in damages and is limited to procedural defaults relating to the CPR, Practice Directions, or pre-action protocols. Written by Alexandra Prato, associate...
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