Benjamin Waidhofer

Benjamin Waidhofer successfully discharges Account Freezing Order obtained ex-parte by HMRC and obtains an order for costs against HMRC

Benjamin Waidhofer, instructed by Naureen Shariff (senior associate) at Blackfords LLP, successfully applied to set aside an Account Freezing Order obtained by HMRC against a bank account holding over £40,000.

On 19 May 2020, at Peterlee Magistrates’ Court and without notice to the signatories on the bank account in question, HMRC applied ex-parte to freeze a bank account which had a credit balance of over £40,000.  The signatories to the bank account only learnt about the application after the hearing, upon receipt of the Court Order notifying them that the account was ‘frozen’.

Benjamin Waidhofer was instructed to draft the application to set aside the Account Freezing Order and the application was listed at Peterlee Magistrates’ Court for a final hearing on Tuesday 14 July 2020.  Shortly before that hearing, on Wednesday 8 July 2020, HMRC confirmed that the application to set aside/discharge the Account Freezing Order obtained ex-prate would not be opposed.

At a later hearing, Benjamin Waidhofer cross-examined the investigating officer over remote video-link about the investigation, the need for the Account Freezing Order and the decision to proceed ex-parte.

In the course of a reserved Judgment dated 17 August 2020, District Judge Kristin Harrison made a costs order against HMRC, an order rarely made in light of the decision in R (on the application of Perinpanathan) v City of Westminster Magistrates' Court [2010] EWCA Civ 40, [2010] 1 WLR 1508.

The Criminal Finances Act 2017 inserted sections 303Z1 – 303Z19 into the Proceeds of Crime Act 2002. Those provisions came into force in 2018 and are increasingly used by enforcement officers to obtain Account Freezing Orders (303Z1 – 303Z8 POCA 2002) and subsequently Forfeiture Orders (section 303Z9 – 303Z19 POCA 2002).

It is understood that very few Account Freezing Orders have successfully been set aside or discharged.  The work done on this case, on a very tight timescale during the pandemic, demonstrates the need for anyone in receipt of an applicant for an Account Freezing Order should urgently obtain legal advice and assistance.

Benjamin Waidhofer is frequently instructed to advise and represent both individuals and corporates under in both criminal and civil asset forfeiture proceedings.  Any queries about this matter, or any other, ought to be addressed to .