Without prejudice communications, unambiguous impropriety and asset freezing orders (Motorola v Hytera)

To obtain an asset freezing order, a claimant must adduce sufficient evidence to convince a court that without restraint the defendant will attempt to make itself judgment-proof through the dissipation of assets. The meaning of dissipation, ie, what disposals of assets may constitute dissipation, is discussed in another article in this issue,1 which it is suggested the reader might prefer to read first. The current Comment is focused more on the proof required that the defendant appears likely to dissipate assets. It does so in the specific context of oral or written communications made by the parties to litigation during negotiations aimed at settling their dispute. When can any of these communications be used by a party to prove its case against the other, in this context to prove that the other is likely to dissipate its assets and make itself judgment proof? A link will be made with other decisions on proof of dissipation, and some short comment will be offered on the harmony between the concept of dissipation in the decision reviewed and the article referred to above.