FW Aviation (Holdings) 1 Limited v VietJet Aviation Joint Stock Company [2025] EWHC 1920 (Comm)

[2025] EWHC 1920 (Comm)Case No CL-2022-000467IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTSCOMMERCIAL COURT (KBD)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate Wednesday, 23 July 2025
Before
Mr Justice Picken
Between
FW Aviation (Holdings) 1 LimitedClaimantVietJet Aviation Joint Stock CompanyDefendant
Richard Lissak KC, Edward Levey KC and Orestis Sherman (instructed by Quinn Emanuel Urquhart & Sullivan LLP) for ClaimantLord David Wolfson KC, Steven Thompson KC and Erin Hitchens (instructed by King & Spalding International LLP) for DefendantHearing Hearing dates: 22/07/2025 – 23/07/2025
JUDGMENT

Wednesday, 23 July 2025

[1]This is my ruling in relation to an application made by FWA, the Claimant, for freezing order relief. This is an application made in the context of a judgment dealing with quantum, which I handed down on 17 April 2025. By virtue of that judgment, I found VietJet, the Defendant, liable to pay FWA the sum of US$164,792,345 in respect of certain termination sums (for shorthand, described as the ‘Issue 1 Judgment Debt’) and US$16,737,205 in respect of Issue 4 concerning certain rental payments due in respect of what are described as the NEO aircraft for a period following termination of the leasing (the ‘Issue 4 Judgment Debt’).[2]Pursuant to that judgment on 17 April 2025, I required that those two judgment debts be paid by 15 May 2025. However, at a subsequent hearing on 1 May 2025, when in fact dealing with, amongst other matters, an application by VietJet for a stay of execution in respect of the larger element of the judgment debt, namely the Issue 1 Judgment Debt, I declined that application, but altered the timescale for meeting the two judgment debts. In effect, I ordered that the monies be paid in three tranches, the first tranche of US$60,509,850 being due and payable on 15 May 2025 but subsequent amounts being due and payable on later dates.[3]In the event, the only payment made has been in a rather modest amount - US$2 million - on 19 May 2025, shortly before the hearing of the appeal before the Court of Appeal against the judgment on liability, which I handed down last year. That appeal, I note, was subsequently dismissed.[4]In the immediate lead-up to the appeal, FWA applied for an order seeking to stay the appeal pending payment of the outstanding Judgment Debts because of its failure to pay the monies which fell due on 15 May 2025. That order was not made by the Court of Appeal. On the contrary, it was refused with a costs order made against FWA.[5]This is the context in which this application comes to be made. There is, of course, a much wider context, as intimated already, involving two trials so far, one dealing with liability last year and one dealing with quantum this year. There is, indeed, expected to be a further quantum trial at some point next year. In short, this is complex and highly contentious and fought-out litigation, and it is the submission made on VietJet’s behalf, both by Lord Wolfson KC and Mr Thompson KC, that the present application is but another aspect of the hard-fought nature of the litigation. Whether that is right or not is rather, in my assessment, by the by; what I need to decide is whether the application is meritorious by reference to the relevant law applicable to the granting of freezing order relief.

The law

[6]That law is, of course, very well known and entails the Court considering the following matters: first, whether the applicant has a good arguable case on the merits; secondly, whether there is a risk that a judgment may not be satisfied because of unjustified dealing with assets; thirdly, whether there are assets held by or on behalf of the respondent to the application within the geographical scope of the proposed injunction (I note here that the geographical scope sought in relation to the relief here is worldwide); and, lastly, whether it is just and convenient in all the circumstances to grant the relief sought.[7]The application is made, as will already be apparent, at a post-judgment stage: after, that is, both the liability judgment and the quantum judgment. It follows, and this was not disputed by VietJet, that the good arguable case requirement is necessarily here satisfied; see, for completeness, Great Station Properties SA v UMS Holding Ltd[2017] EWHC 3330 (Comm) at [56] per Teare J.[8]It is also the case, necessarily, as that same authority indicates at [63], that because the application is being made post-judgment, this is relevant to the fourth limb of the test, namely whether it is just and convenient in all the circumstances to grant the relief sought.[9]In this case, in relation to the present application, the only debate is as to that fourth aspect and, more particularly before that fourth aspect falls to be considered, as to the second aspect, namely whether there is a sufficient risk of dissipation to warrant the grant of the relief sought.[10]It is common ground as to that limb of the four-fold test that what is there required is an objective assessment of the risk that a judgment may not be satisfied because of a risk of unjustified dealing with assets: see Lakatamia Shipping Co Ltd v Morimoto [2019] EWCA Civ 2203 at [34(1)], where Haddon-Cave LJ adopted and repeated certain observations made by Popplewell J (as he then was) in Fundo Soberano de Angola v dos Santos [2018] EWHC 2199 (Comm) at [86(2)].[11]It is also common ground that the risk of dissipation must be demonstrated with what has been described as “solid evidence”, as opposed to mere inference or generalised assertion: see Lakatamia at [34(2)] per Haddon-Cave LJ. However, the applicant need only establish that the risk is real.[12]The applicant does not need to establish the risk on the balance of probabilities, nor that the risk is more likely than not to exist: see Les Ambassadeurs Club Ltd v Yu [2021] EWCA Civ 1310, [2022] 4 WLR 1 at [27] and [37] per Andrews LJ.[13]It is also accepted by both parties that, in making the assessment as to risk of dissipation, the Court must look at the totality or the accumulation of evidence: see Lakatamia at [34(7)] per Haddon-Cave LJ. The same point was made by Gloster LJ in Holyoake v Candy [2017] EWCA Civ 92, [2018] Ch 297 at [64], where it was observed, in effect, that even if factors do not individually justify such an assessment, they might nonetheless do so cumulatively (or “collectively”, as Gloster LJ put it).[14]It is FWA’s position in relation to this application that here the risk of dissipation is clearly established. I will come on in a moment to deal with the matters relied upon in that context. However, VietJet’s position is to the contrary, namely that the risk of dissipation is not clearly established and, on that basis, the submission is made that the relief sought should be refused. In this respect, whilst I have been referred to a number of authorities and, indeed, have already made some reference to them myself thus far, I have found it particularly instructive and useful to consider the observations made by Andrews LJ in Les Ambassadeurs. I refer in this respect, first, to [14], where she said this:
“The purpose of a freezing injunction is to ensure that a judgment in the applicant’s favour will not go unsatisfied by reason of assets that would otherwise be available to satisfy it being dealt with in a manner that will make them unavailable by the time the judgment comes to be enforced. It is designed to protect against the frustration of the process of the court by depriving the claimant of the fruits of any judgment obtained in his favour. It is not intended as a safeguard against insolvency, nor as a means of providing security for a claim, however strong that claim may be and however large a sum of money may be involved. Nor is it just another standard means of securing enforcement of a judgment in favour of the applicant, like a charging order or third party debt order. It is a potent weapon in the armoury available for dealing with those individuals and companies who may seek to make themselves judgment-proof.”
Then, at [16], Andrews LJ said this:
“In view of the drastic interference with a person’s right to do as they please with their own property that a freezing injunction entails, (quite apart from the reputational damage that it may cause), the courts must remain vigilant to ensure that such orders will only be granted in cases in which the evidence suffices to establish that there is a real risk of the judgment going unsatisfied by reason of what Gloster LJ in Holyoake v Candy [2017] EWCA Civ 92; [2018] Ch 297 (‘Holyoake’) elegantly termed ‘unjustified dissipation’, and where it is just and convenient to make the order.”
Andrews LJ continued at [17] in these terms:
“It makes no difference in terms of the risk that must be established whether the freezing injunction is sought before or after judgment, though post-judgment injunctions may be easier in practice to obtain. The policy of the law is to enforce judgments, and for that reason it may be right that when a judgment creditor has satisfied the court there is a real risk of dissipation, it would require particularly strong grounds for refusing to grant him a freezing order on the basis of justice and convenience, as Teare J suggested in Great Station Properties SA v UMS Holding Ltd [2017] EWHC 3330 (Comm) at [63].”
Andrews LJ, then, said this at [18]:
“However, I respectfully disagree with the suggestion made by Leggatt J in Distributori Automatici Italia SpA v Holford General Trading Co Ltd [1985] 1 WLR 1066, 1073, and cited with apparent approval by Teare J in that same paragraph, that it may be easier to infer a risk of dissipation in a post-judgment case. An adverse judgment may provide more of an incentive to the defendant to put his assets beyond the reach of the claimant than a mere claim, but that tells one nothing about whether the evidence establishes a real risk that he may do it.”
Andrews LJ continued with a particularly important paragraph, namely [19]:
“In this context, there is an important distinction to be drawn between a defendant who can pay but refuses to pay his debts until he is forced to do so, and a defendant who is so determined not to pay that he would take active steps to frustrate the recovery of sums due to his creditors by transferring or concealing assets or by some other form of unjustified dissipation. In order to avoid the undesirable situation in which, as Gloster LJ put it in Holyoake at para 58 ‘the nuclear remedy of a freezing order would … become a commonplace threat’, there must be cogent evidence from which it can at least be inferred that the defendant falls into the latter category. The distinction is one which the Judge had at the forefront of his mind when he refused to make the freezing order in the present case.”
Then, at [16], Andrews LJ said this: Andrews LJ continued at [17] in these terms: Andrews LJ, then, said this at [18]: Andrews LJ continued with a particularly important paragraph, namely [19]:

Risk of dissipation

[15]The reason why I consider those last observations to be particularly significant is because I consider Mr Thompson to have been correct when he made the submission that, in the present case, FWA has taken an approach which is not reflective of the test described by Andrews LJ. FWA’s counsel say this at paragraph 21 of the skeleton argument:
“In making this application, FWA recognises the distinction which the authorities draw between:(1) a recalcitrant defendant who can pay but refuses to pay his debts until he is forced to do so; and, (2) a defendant who is so determined not to pay that he would take active steps to frustrate the recovery of sums due to his creditors by transferring or concealing assets or by some other form of unjustified dissipation.”
[16]However, when submissions came to be made, both in writing and orally by Mr Lissack on FWA’s behalf, it became apparent that FWA was advancing its application on a lesser basis than that described by Andrews LJ. That lesser basis entailed, in essence, a complaint (supported by evidence said to justify that complaint) directed towards VietJet being shown to be refusing to pay yet being able to pay, rather than (as Andrews LJ made clear is required) VietJet being so determined not to pay that active steps have been taken by VietJet to frustrate the recovery of the judgment sums by FWA.[17]In support of the application, there is a lengthy affidavit from Mr Baker, FWA’s solicitor, in which, over the course of some 152 paragraphs, much is said about VietJet’s conduct. On analysis, however, I agree with Mr Thompson when he submits that the only truly relevant material which falls to be considered is the material set out in just three and a half pages of that affidavit, namely paragraphs 117 to 128. This is not to say that I ignore the other material sought to be relied upon; I do not. However, ultimately, I agree with Mr Thompson that the application really centres on the material highlighted in those few paragraphs. I will come on to address what is there stated, but, first, I should say something about the other matters on which FWA relies.[18]Those matters entail essentially three aspects: first, what Mr Lissack described as “VietJet’s prior conduct”; secondly, certain (as described) “misleading submissions” made on VietJet’s behalf concerning alleged attempts to raise monies to satisfy the judgment debts; and, thirdly, the matters covered by those few paragraphs in Mr Baker’s affidavit to which I have referred, namely certain recent financial transactions entered into by VietJet (a dividend distribution, entry into a series of new purchase orders for various aircraft, and transfer of certain assets to VietJet subsidiaries).[19]In the skeleton argument submitted by FWA, matters were dealt with in the order I have just described - in other words, starting with VietJet’s prior conduct. However, in his oral submissions, Mr Lissack dealt with matters in reverse. This was, in my view, a recognition (and a correct recognition) as to the relative importance of the three matters relied upon. I have already indicated that it is the third matter which seems to me to have the greatest significance, albeit I understand why Mr Lissack and FWA also invoke the other two aspects.

VietJet’s prior conduct

[20]Dealing, first, with VietJet’s prior conduct, a number of matters are highlighted, all of which are aspects that I have previously had cause to address, whether in my initial judgment dealing with liability or in subsequent rulings. These are concerned, to take an example, with what was stated by VietJet in the aftermath of the liability judgment, in relation to which I have previously made certain criticisms. These are aspects, however, I agree with Mr Thompson, which do not go very far.[21]First, they are aspects which are necessarily of some age, in the sense that they are not recent matters, and it is in this context to be noted that there has been no previous application by FWA for freezing order relief. Putting the matter shortly, if the previous conduct of VietJet was considered to justify an application for freezing order relief by FWA, then, it is curious that no such application has previously been made. This demonstrates, in my view (and rightly) that these are matters which do not, in and of themselves or cumulatively within their own category, justify the grant of the freezing order relief now sought.[22]There is, in this context, a further point to bear in mind. This is the point made by Henshaw J in Arcelormittal USA LLC v Ruia & Ors [2020] EWHC 740 (Comm) at [219(vi)]. Henshaw J said this:
“Where a defendant knows that he faces legal proceedings for a substantial period of time prior to the grant of the order, and does not take steps to dissipate his assets, that can be a powerful factor militating against any conclusion of a real risk of dissipation (see e.g. Candy v Holyoake [2017] EWCA Civ 92… § 62 and Petroceltic Resources Ltd v Archer [2018] EWHC 671 (Comm) §§ 58, 64-65).”
This is a case in which VietJet has been fully engaged since 2022. It is not a case where VietJet has chosen to take no part. On the contrary and as I have indicated, VietJet has taken a substantial part in what is hotly fought litigation. It follows that the previous conduct relied upon by FWA is not conduct which I consider to have any particular significance in relation to the application now made.

Allegedly misleading submissions

[23]I turn to the second aspect relied upon by FWA, namely what is described as misleading submissions by VietJet as to attempts to raise money to satisfy the judgment debts. In relation to this, Mr Lissack highlights how, at the hearing on 1 May 2025, Mr Thompson, on behalf of VietJet, and no doubt on instructions from VietJet, described VietJet as taking “active and urgent steps” to raise the monies to pay FWA pursuant to the orders which I had made.[24]Mr Lissack submits that that assurance to the Court has not been borne out by the material now available to FWA and, indeed, the Court in relation to the present application. First, Mr Lissack highlights, as I have indicated, that apart from the modest US$2 million paid on 19 May 2025, no other payment has been made. Mr Lissack speculates that that modest payment was made for tactical purposes in any event, given the proximity of the Court of Appeal hearing, and not because of any true commitment to meet the judgment debts. Secondly, Mr Lissack highlights how, in the witness statement submitted by Mr Donal Boylan from VietJet in response to the present application, a witness statement dated 14 July 2025, no description is given as to the efforts that VietJet had made in the lead-up to the 1 May 2025 hearing. Mr Lissack suggests that that is somewhat surprising in the circumstances.[25]I am clear, notwithstanding those submissions, that there is no substance in the criticism sought to be made. The fact that the judgment debts have not been discharged does not lead inevitably to the conclusion that active steps were not being taken as at the 1 May hearing. Indeed, in this respect, it is worth bearing in mind what was stated in the second witness statement of Sarah Walker dated 27 April 2025, which was before the Court on 1 May 2025. In that statement, under the heading “Raising funding to pay the Judgment would take time” and in support of the application then being made by VietJet for a stay of execution of some six months or so, Ms Walker described at paragraph 27, amongst other things, VietJet as “also investigating the possibility of one of its major shareholders, Mdm Thao, assisting it to raise financing from third-party sources”.[26]There is no reason to suppose that what Ms Walker had to say there was wrong. Indeed, it is confirmed by what was subsequently stated in the accounts which were produced on 10 May 2025, specifically at Note 40 where this is stated, amongst other things:
“On 17 April 2025, the Commercial Court issued a quantum judgement, recognising the Claimant’s right to claim damages and contract termination … in relation to the four (04) aircraft leases. Under this judgement, the Group is liable for certain costs and compensation arising from the termination of these lease agreements.”
What is, then, stated is as follows:
“The Company’s Board of Management, after consulting with legal advisors, has assessed that: (i) the Group has reasonable legal grounds to continue pursuing the appeal; (ii) as at the date of these consolidated financial statements, the Group had submitted a request and received written confirmation from a major shareholder affirming their commitment to arrange third-party financing for the Group in the event that obligations arise in connection with the ongoing legal proceedings…”
. Mr Lissack makes certain criticisms of what is stated in these notes, which seem to me to have some merit, specifically the absence of any mention of the judgment debts and the timescale ordered at the hearing on 1 May 2025. However, for present purposes, it is significant, in my assessment, that what is there stated concerning a major shareholder affirming their commitment to arrange third-party financing for the group, is consistent with what Ms Walker was telling the Court in her second witness statement. What is, then, stated is as follows:[27]All in all, I am not satisfied that there was any misleading of the Court on 1 May 2025, and therefore that there were any inaccurate statements made which would justify a conclusion that there is here a sufficient risk of dissipation.

Recent financial transactions

[28]This brings me, therefore, to the so-called recent financial transactions relied upon by FWA, which, to repeat, were the main focus of Mr Lissack’s oral submissions, since, as I say, he sought to deal with these aspects before only then coming on to deal with the two matters which I have already addressed.[29]The recent financial transactions involve, as I have indicated, consideration of a recent decision to distribute a dividend to shareholders, certain recent purchase orders in respect of new aircraft and engines and, thirdly, certain agreements recently made to transfer aircraft to VietJet’s subsidiaries.

Dividend distribution

[30]I deal, first of all, with the dividend distribution. It is not in dispute that on 30 May 2025 – and so after the quantum judgment, as Mr Lissack highlights – following a proposal made by the board of directors, a decision was made by the shareholders of VietJet in a General Meeting to authorise the board of directors of VietJet to issue dividends at the maximum rate of 20% accumulated undistributed consolidated profits. In this respect, Mr Lissack refers to the fact that Mr Boylan says that VietJet is yet to announce whether this dividend will be a cash dividend or a stock dividend, but that Mr Boylan does not challenge Mr Baker’s evidence that the value of the dividend is believed by FWA to be in the region of some US$85 million. Nor is it in dispute, Mr Lissack notes, that the intended dividend, if and when paid, will be the first to have been paid since 2019.[31]Mr Lissack submits that, in the circumstances, given that VietJet owes FWA something in excess of US$225 million, it is difficult (if not impossible, as he puts it) to see how a decision could have been made essentially to ignore the orders to pay the judgment debts and instead to make a maximum distribution of profits to shareholders. Mr Lissack suggests that Mr Boylan offers no explanation and puts forward no documentary evidence to support the decision reached.[32]Again, however, I consider that this is not a matter which assists FWA in the present context. Specifically, I do not consider that this is a matter which, taken in isolation or, indeed, with any of the other matters relied upon, provides the cogent evidence of a real risk that VietJet will dissipate its assets. I agree with Mr Thompson when he submits that this is an aspect of ordinary course of business. VietJet is a company, and companies do, on occasion, decide to distribute dividends. The fact that here a decision is being made to do so in the wake of the quantum 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.[33]On the contrary, when the matter is considered in somewhat more detail, it is apparent that this is a decision that was foreshadowed last year and possibly, Mr Thompson suggests, the year before that, namely 2023. In this respect, it is significant that in the proposal dated 9 May 2025 put forward to the general meeting of VietJet shareholders, the following was stated under the overall heading of “Profit Distribution Plan” in paragraph I, under the sub-heading “Report on the implementation”:
“Pursuant to the Resolution of the AGM No. 01-24/VJC-DHDCD-NQ dated April 26, 2024 approving the share issuance plan to pay dividends and the Resolution of the AGM No. 02-24/VJC-DHDCD-NQ approving the temporary postponement of the share issuance plan to pay dividends in order to prioritize the private placement plan, Vietjet Aviation Joint Stock Company (‘Vietjet’) did not pay dividends in 2024. This decision aims to enhance liquidity by settling short-term debts and supplementing business capital, invest in a wide-body A330 fleet, prepare for market expansion into Europe and the United States, develop ground and in-flight services, improve service quality, and expand operational scale. This is a crucial step to enhance competitiveness and build a solid foundation for Vietjet’s safe, efficient, and sustainable development in the post-pandemic period.”
As Mr Thompson points out, therefore, there was a decision made in 2024 to pay dividends, albeit that ultimately the AGM decided to suspend – temporarily, apparently – that payment through the issuance of shares.[34]What the proposal goes on to state under paragraph II (sub-heading “Profit distribution plan”) is as follows:
“The Board of Directors would like to propose to the 2025 AGSM to authorize the Board of Directors, depending on the business situation and market conditions, to implement the 2025 Profit Distribution Plan with dividends in shares and (or) cash at a maximum rate of 20% from accumulated undistributed consolidated profits from most recent Company Audited financial report.”
Accordingly, what was proposed in May this year, admittedly after the quantum judgment, was that there should, indeed, be the issuance of dividends, whether through shares or cash.[35]Just on this point, as Mr Thompson points out, given that the dividend has yet to be paid, whether in shares or cash, it remains to be seen whether, in fact, the dividends will be through the issuance of shares or cash. If the issuance of shares is how the dividend is accomplished, then, I rather agree with Mr Thompson that it would be difficult to see how that would entail the dissipation of any asset at all. The position would be different if the dividends were paid by cash, I acknowledge, but for present purposes it is not obvious that it will be one or the other, and it is certainly not obvious, therefore, that there is, through this decision to pay a dividend, a decision to dissipate assets otherwise available for the purposes of enforcement of the judgment debts.[36]In this respect, it is also significant to look at the accounts dated 10 May 2025, specifically at internal page 8 under the heading “Consolidated Balance Sheet as at 31 December 2024”. This is because (under the sub-heading “Owners’ Equity – Capital and reserves”) there is an entry stating “Undistributed post-tax profit of previous years” and against that entry is a very substantial figure of 9,249,524,468,061. That entry is followed by an entry stating “Post-tax profits of current year” against which the figure is 1,403,162,979,000. It follows that the post-tax profits that have not, to date, been distributed from previous years dwarf the amount of post-tax profits for the current year. In those circumstances, the submission made by Mr Thompson, namely that what here VietJet is doing is no more than its ordinary course of business, is a submission which seems to me to have significant force.[37]In the course of Mr Lissack’s submissions, he suggested to the contrary and, in particular, sought to suggest that the issuance of dividends by a company cannot amount to an ordinary course of business activity. I pressed him on that matter and did not receive a satisfactory answer. It seems to me that Mr Thompson must be right that, if a company chooses to distribute dividends then that is an aspect of its ordinary course of business, and that Mr Lissack’s submission to the contrary is rather too limited. His submission, in essence, was that “ordinary course of business” amounts to “ordinary course of trade or business activity involving the business of that company”. I do not agree. It would include that, but it cannot be limited to this, and for that reason, the decision to distribute a dividend or dividends is not a matter which justifies a conclusion that here, objectively, there is a sufficient risk of dissipation.

Transfer of aircraft to subsidiaries

[38]I come on to the next matter in this category sought to be relied upon, which is the transfer of certain aircraft to VietJet’s subsidiaries.[39]Mr Lissack points out that, since the quantum judgment, VietJet has agreed to transfer a number of aircraft to its subsidiaries. In particular, on 6 May 2025, VietJet announced that 20 Boeing 737 aircraft would be transferred to a new subsidiary, namely VietJet Qazaqstan, and that on 16 May 2025, VietJet announced that it had agreed to transfer 50 Boeing 737 aircraft from its existing order to Thai VietJet.[40]In relation to the latter transfer, the first deliveries under that order are apparently due to begin this coming October. Mr Lissack notes that Mr Boylan, in his witness statement, does not dispute that these transfers have been made and (“tellingly”, as Mr Lissack puts it) that Mr Boylan does not say when the decision was made to transfer the aircraft to the subsidiaries. Nor does he say, at least in terms, Mr Lissack observes, that the decision was unconnected to the quantum judgment.[41]The difficulty with FWA’s reliance on this matter, however, is severalfold. First, as Mr Boylan points out in paragraph 28 of his witness statement, the aircraft to be operated by these subsidiaries are “not existing aircraft that are already operated by VietJet”. He goes on to say this:
“Rather, they are new Boeing 737 MAX aircraft that were previously intended to be delivered to VietJet by Boeing in the future, but now will be delivered to VietJet Qazakstan and Thai VietJet. Consequently, these aircraft do not form part of VietJet’s assets. Moreover, even if the aircraft had not been allocated to VietJet Qazakstan or Thai VietJet, the aircraft would not ever have formed part of VietJet’s assets and been available for enforcement because, in the normal course, ownership is transferred on the delivery date from the manufacturer to either a third party purchaser (under a sale and lease back structure) or to an equity provider (under a JOLCO structure).”
[42]What Mr Boylan has to say there seems to me to be unanswerable. These are not aircraft that, as matters stand, constitute assets of VietJet. It follows that they are not, and cannot amount to, assets that are being dissipated or are at risk of being dissipated for the purposes of the present application. That is an end to the matter.[43]In any event, I also agree with Mr Thompson that what here has been done (and is being done) amounts again to an aspect of the ordinary course of VietJet’s business. The decisions to transfer were made in the context of visits by high-ranking personnel from Kazakhstan and Thailand; I have been shown photographs relating to those visits. They are not visits, it can be inferred, which were arranged in short order. It follows that the decisions relating to the transfer of the aircraft are very unlikely to have been made solely in response to the quantum judgment, and therefore as part of a decision to dissipate assets. What is happening here is, I am quite clear, as Mr Thompson submits, no more than the ordinary course of VietJet’s business.

Purchase orders

[44]This brings me to the last aspect of the suggested recent financial transactions justifying the grant of freezing order relief. This is the aspect relating to new purchase orders which VietJet has made since 15 May 2025 in respect of 20 Airbus A330-900s worth some US$7.4 billion, 100 Airbus A321neos worth some US$9.4 billion, and 40 Rolls-Royce Trent 7000 engines.[45]Again, there is no dispute that these purchase orders have been entered into. Mr Baker’s evidence in support of the application, based on information provided to him by FWA’s aviation counsel, is that industry practice is for some 1% or so of the total purchase price to be paid upon the signing of any memorandum of understanding, and that anywhere between 5% and 10% of the total purchase price will be paid upon entering into a formal contract.[46]Mr Lissack notes that VietJet has failed to disclose the relevant agreements and it is not certain, therefore, how they ought to be characterised, but he observes that Mr Boylan does not take issue with what Mr Baker has to say about industry practice. Mr Boylan, in fact, says this at paragraph 21:
“With respect to the order of A330-900s, this followed on from a previous order placed with Airbus in July 2024 for 20 A330-900s. The order is aimed at enabling VietJet to increase flights on high capacity routes and introduce long haul services to Europe. It is important to note that this is a long-term order. The aircraft will not be delivered until 2030-2032 and VietJet will not be required to make any PDPs in respect of these aircraft to Airbus until 2027 at the earliest (by which time VietJet expects to have paid the judgment debts in full). While it is true that there is a signing fee associated with this order, it is de minimis in the context of the Maximum Sum (less than 3%).”
He, then, says this at paragraph 22:
“The order placed with Rolls Royce for 40 Trent 7000 engines is linked to the A330-900 order as the engines are to be installed on those aircraft. These are also scheduled for delivery from 2030 onwards. VietJet does not have any payment obligations to Rolls Royce until at least 2030 (when the first A330-900s are due to be delivered).”

He adds at paragraph 23:

“With respect to the order of A321neos, these aircraft will enable VietJet to replace its existing narrow-body fleet with more modern and efficient aircraft, boost capacity and increase short-haul coverage. Again, this is a long-term order, with the aircraft not due to be delivered until 2030-2032 and VietJet will not be required to make any PDPs to Airbus until 2027 at the earliest. The signing fee for this order is also de minimis (less than 3% of the Maximum Sum).”
In fact, that last reference to less than 3% of the maximum sum Mr Thompson at the start of the hearing sought to correct, explaining that an error had been made and that the better reference should be less than 3.5%. He, then, says this at paragraph 22: He adds at paragraph 23:[47]Mr Boylan goes on at paragraph 24 to say this:
“VietJet did not decide to place orders for 120 new Airbus aircraft as a reaction to the judgment of Mr Justice Picken dated 17 April 2025 (less than a month before the A330-900 order and two months before the A321neo order). Aircraft orders, particularly orders of this size, take many months to plan, negotiate and arrange. Moreover, by investing in modern and efficient aircraft as part of a sustainable fleet replacement and growth plan, VietJet is aiming significantly to grow its revenues.”
[48]This seems to me to represent a complete answer to the submissions made by Mr Lissack on behalf of FWA in this context. As Mr Boylan explains, the decision to enter into these purchase orders was part of VietJet’s ordinary business activity and that ordinary business activity inevitably, as I see it, includes making decisions to purchase aircraft. There is nothing here to support a conclusion that the decisions to enter into the purchase orders involve a reaction to the quantum judgment. On the contrary, as Mr Boylan explains, orders such as these take many months to plan, negotiate and arrange. Therefore, the proximity of the purchase orders to the quantum judgment demonstrates that it cannot have been the quantum judgment that provoked VietJet’s entry into those orders. They must, indeed, have been orders that were being worked upon before the quantum judgment was issued.[49]There is also this further curiosity. What Mr Boylan is describing, unsurprisingly, by reference to these purchase orders, is the acquisition by VietJet of assets rather than the disposal of assets. It would be different, putting the matter simply, if these were aircraft that VietJet already had and were giving away, but what the purchase orders represent is a decision by VietJet to acquire assets, albeit assets which they will not, in fact, receive for some substantial time. It is true that payments are involved when these purchase orders are entered into, but they are relatively modest payments and they are payments which are designed to achieve the acquisition of assets, namely the growth of VietJet’s business. In those circumstances, it is inconceivable that these purchase orders amount to dissipation - as opposed to the opposite.[50]Therefore, this likewise is not a matter which justifies an objective conclusion that here there is the risk of dissipation that there would need to be, were freezing order relief to be granted.[51]It follows, whether viewing these various aspects individually or cumulatively, that I am wholly unpersuaded that the risk of dissipation hurdle has been overcome, having regard in particular to the approach described by Andrews LJ in Les Ambassadeurs.

Just and convenient

[52]It further follows that the final aspect of the freezing order relief test, namely whether it is just and convenient to grant the relief sought in all the circumstances, is not a test which arises and need not, therefore, be considered.[53]In those circumstances, I say no more about it, except that I consider it most unlikely that I would have concluded, in any event, that it is just and convenient in all the circumstances for the relief sought to be granted, bearing in mind the matters which I have already canvassed.[54]I bear in mind, in particular in this context, the fact that VietJet is an active, indeed growing, airline company and the various steps which are sought to be relied upon seem to me, to repeat, to amount to no more than its ordinary course of business activities. I bear in mind in this context what Henshaw J had to say in Arcelormittal at [233], which was this:
“The worldwide freezing order sought by AMUSA would affect (as EGFL puts it) a massive conglomerate engaged in day-to-day commerce, on whose operations many third parties (employees, contractors, purchasers, and financiers) depend.”
[55]It is to be noted in this context that, when Lord Wolfson made his submissions to me ahead of Mr Thompson’s submissions, he drew attention to certain press commentary that has been published over the course of the past few days. That commentary has been specifically focused on the present application. Lord Wolfson criticised FWA for apparently providing details of the application to certain press outlets. His complaint was that the present application is designed to exert pressure on VietJet and that the engagement with those press outlets has been part of that plan to exert pressure. Be that as it may, it is interesting to note an article dated 21 July 2025 – namely, this Monday just gone – by an entity called Travel and Tour World which appears to be under the impression that the order sought had already been made. Various observations were set out. These included, on the front page, a headline as follows: “Vietjet Air faces global freezing[56]These sorts of observations, which are completely wrong given that they are premised on the making of an order that, as at Monday, was only being applied for and that, in the event, I have declined to make, nonetheless demonstrate the sort of impact that the present application would have on an airline such as VietJet. They are the sorts of matters that Henshaw J had in mind in his judgment at [233].[57]Henshaw J went on at [240] to say this:
“Particularly in this type of context, the ‘ordinary course of business’ exception is likely to create great uncertainty about whether particular transactions may or may not proceed without AMUSA’s or the court’s consent. I agree with EGFL that, among other things, that gives rise to a risk that third parties will, for understandable reasons, refuse to accede to any transaction that has not been specifically sanctioned. It is well known that in practice banks will not permit any payment to be made once a worldwide freezing order is imposed unless there is a court order or an agreement specifically sanctioning that payment… Every transaction of any size will carry the risk of a subsequent allegation of contempt of court (or aiding and abetting a contempt of court) unless prior consent is obtained. Having to seek prior consent either from a major competitor or from the court is bound to have a severe chilling effect on the carrying on of the group’s business. It is therefore not unreasonable for Mr Galkin of VTB to state that ‘VTB considers that there is a real prospect that a WFO would cripple the Essar Group’s business and cause loss to VTB.’”
Of course, the facts of that case differ from the present, but the same concerns, as highlighted by Henshaw J, arise in the present case and are borne out by the sort of inaccurate comment made by the article to which I have referred.[58]It follows that I would, therefore, have been most careful if I had reached the stage to decide that there was a risk of dissipation, in any event, when deciding whether it would be just and convenient in all the circumstances to grant the relief sought. As I have indicated, that test does not actually fall to be considered, but the sort of consideration I have just identified demonstrates why, in a case such as the present, great care needs to be taken.

Conclusion

[59]For all those reasons, as I indicated at the conclusion of yesterday’s argument whilst explaining that I would give my reasons orally today, I have concluded that the application for freezing order relief made by FWA must be refused. ______________

order

massive blow to travel industry, Thailand, Cambodia, and Singapore to be worst affected.” The article, then, goes on in the first paragraph to say this: “While the travel industry stumbled upon alarming revelations this day, with VietJetAir, a notable Vietnamese low-fare airline, is now encountering an intercontinental freezing directive. This groundbreaking verdict has unleashed waves of unease across the international tourism trade, intimating a prospective transformation in flight conduct and sector self-assurance. Travel experts are vigilantly evaluating the consequences, as such a move may stir interferences impacting hundreds of thousands of travelers. Furthermore, industry analysts are still only scratching the surface how this freeze could restructure transpacific routes and whether competitors might capitalize on the sudden strategic void. Time will tell if VietJetAir can successfully appeal this inhibitive ruling or if passengers should book passages through alternative carriers to redirect potential alterations.” Over the page, under the heading “Immediate impact on travel bookings”, this is, then, stated: “Travel professionals are rapidly assessing the damage. Thousands of bookings are now either cancelled or indefinitely delayed. Passengers booked for imminent flights have found themselves with minimal alternatives, as VietJetAir had emerged as a significant player, particularly within budget travel segments.” Over the page, under the heading “Immediate impact on travel bookings”, this is, then, stated:

Cited in 1 later judgment