What Is The Test For "A Good Arguable Case" In A Freezing Order Application? An Issue Crying Out For Clarification

Following several recent High Court decisions, there are now two directly conflicting lines of authority on the question of what test a judge should apply when assessing whether an applicant for a freezing injunction has met the requirement to have a "good arguable case" on its substantive claim. The judge in the most recent High Court decision considered that this issue was crying out for a definitive answer and should be addressed from first principles by the Court of Appeal.

Essentially, the faultline between the conflicting authorities is whether:

• the test remains the long-established "Niedersachsen test" – under which the applicant's case does not necessarily have to have a better than fifty per cent chance of success but needs to be "more than barely capable of serious argument"