FW Aviation v VietJet Aviation [2025] EWHC 1920 (Comm)
On 23 July 2025, the Commercial Court declined to grant a post-judgment freezing order over the assets of VietJet, a Vietnamese airline, applying the principles in Les Ambassadeurs Club v Yu in which the Court of Appeal had held that it is not the law that it is easier to infer a risk of dissipation of assets in a post-judgment case.
In a useful analysis, in FW Aviation v VietJet, Picken J found that a decision to declare a dividend or even the payment of a dividend by a company is not per se dissipation; it is an ordinary aspect of business and the fact that the decision to declare a dividend might be made “in the wake of [a] judgment does not, of itself, lead to a conclusion that it is improper or unjustified or that the distribution, in effect, amounts to an illegitimate dissipation of assets.”
It was wrong to equate or limit the well-known test of whether a transaction has been done as part of a company’s “ordinary course of business” to whether it was done in the “ordinary course of trade or business activity involving the business of that company”. Companies, especially public, trading companies might have commercial pressures to pay out dividends even though such payments are not part of the underlying trade or business itself.
The case illustrates the dangers of judgment creditors assuming that the fact that their debtors have not paid their judgment debts itself justifies a freezing order. Absent a demonstrable risk of dissipation, judgment creditors must rely on the more prosaic rules of enforcement.
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Steven Thompson KC and Erin Hitchens, instructed by King & Spalding International LLP, appeared for VietJet.
