The exception in the model order for a freezing injunction, enabling a Respondent to deal with its assets in the ordinary and proper course of business, will be well known to civil fraud practitioners. However, given the policy of the law in favour of judgment enforcement, it will usually be inappropriate to include this exception within a post-judgment freezing order. So said Gross LJ in Michael Wilson v John Emmott [2019] EWCA Civ 219 (“Wilson”), a judgment cited by Paul Mitchell KC in Fibula Air Travel SRL v Just-Us Air SRL [2026] EWHC 1270 (Comm).
The “ordinary course of business” exception
Anyone applying for a freezing injunction in the Business and Property Courts in England and Wales is obliged to use a model order. Any departure from the model should be highlighted and explained to the judge hearing the application. One of the exceptions in the model order (sometimes referred to as the “Angel Bell exception”) enables the respondent to deal with or dispose of any of its assets in the “ordinary and proper course of business”. Sometimes, before doing so, the respondent is obliged to tell the applicant’s legal representatives. However, this reporting requirement should be included only where truly necessary and should be regarded as exceptional, given its potential consequences for the conduct of business.
Summary of the facts of Fibula
Just Us obtained a judgment against Fibula for almost €6m on 12 December 2025. On 1 May 2026, Paul Mitchell KC, faced with, among other things, evidence of a risk of dissipation, granted a post-judgment worldwide freezing order. Between the grant of the injunction and the return date, Fibula obtained limited permission to appeal the judgment against it from the Court of Appeal. On the return date, Just Us asked that the freezing injunction be continued and varied to remove the ordinary course of business exception.
Removing the exception
Paul Mitchell KC cited the Court of Appeal’s judgment in Wilson as one of the lead authorities concerning the removal of the ordinary course of business exception from post-judgment freezing orders. In the course of this judgment, Gross LJ concluded that:
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- Whether pre- or post-judgment, a freezing injunction is not intended to confer a preference in insolvency and does not form part of execution itself.
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- The mere increase in the pressure on a judgment debtor, who is subject to a post-judgment freezing order, to pay the amount of the judgment, does not make the order illegitimate.
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- It is not always inappropriate to include the ordinary course of business exception in a post-judgment freezing order.
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- However, “it will sometimes and perhaps usually be inappropriate” to include the exception in a post-judgment freezing injunction. Gross LJ remarked that it would be odd if the judgment debtor could just ignore the judgment and seek to carry on business as usual in circumstances where a risk of dissipation had already been demonstrated (this being necessary for the grant of a freezing injunction).
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- It should not be presumed that a post-judgment freezing order should not include the ordinary course of business exception. That is not the starting point. The appropriateness of the exception in such an order should be treated as a question turning on all the facts of the individual case.
Application of the law to the facts
Paul Mitchell KC found ample reasons to continue the freezing injunction against Fibula. However, the judge recognised that the basis for the freezing order could “crumble away entirely” if Fibula’s appeal were successful and, in such circumstances, Fibula’s position was that it would not be obliged to pay anything at all to Just Us. As a result, it was not appropriate to remove the ordinary course of business exception entirely, thereby effectively condemning Fibula to go out of business, only for Fibula to be discharged from all liability if the appeal succeeded.
Notwithstanding, the Judge was concerned to limit what Fibula was permitted to do and therefore retained the ordinary course of business exception only in narrowed form: Fibula was prohibited from transferring any asset or thing of value to a connected party, and any payments over €7,000 had to be notified to Just Us on the day of the transaction.
Practical take-aways
This is a useful reminder to consider carefully whether the standard exceptions in the model freezing order should be retained, narrowed or removed. In a post-judgment case where there is evidence of a real risk of dissipation, the ordinary course of business exception will require particular scrutiny.
