Background
Benjamin Gilbert and BG Projects Limited obtained judgments exceeding £5.5 million against Broadoak Private Finance Limited for unpaid loans. Disclosure from Broadoak’s bank and a money-transfer company indicated that approximately £5 million had been removed from Broadoak’s account, including €2.55 million paid to a Spanish account belonging to Shahena Bleakley and other sums that may have benefited King Street Capital SL, a Spanish company.
The claimants obtained a without-notice worldwide freezing order against Bleakley and King Street Capital as non-cause-of-action defendants under the Chabra jurisdiction. On the return date, the High Court found good reason to suppose that they had received Broadoak’s assets without proper purpose, found a risk of dissipation, and considered England clearly the more appropriate forum. It nevertheless set aside the order because none of the claimants’ asserted gateways under Practice Direction 6B permitted service of the free-standing application on the respondents in Spain.
The Court’s Holding
The Court of Appeal dismissed the appeal. Section 37 of the Senior Courts Act 1981, which states the High Court’s power to grant injunctions when just and convenient, did not make this free-standing freezing-order application a claim “under an enactment which allows proceedings to be brought” for purposes of the enactment gateway in PD 6B paragraph 3.1(20)(a). Developments concerning the nature of freezing injunctions and the breadth of procedural claims did not supply a service-out gateway where the procedural rules provided none.
The court also refused permission to appeal on the proposed injunction and property gateways because neither argument had a realistic prospect of success. Binding authority confines the injunction gateway to substantive injunctive relief, not a freezing order sought to support enforcement. Nor did the application relate wholly or principally to property in England merely because it was intended to facilitate enforcement of an English judgment: its subject matter was restraint of the respondents’ dealings with assets, predominantly abroad. The freezing order was continued temporarily pending consequential orders.
Key Takeaways
- Section 37 of the Senior Courts Act 1981 does not itself provide a PD 6B gateway for serving a free-standing freezing-order application outside the jurisdiction.
- The injunction gateway does not extend to freezing relief that is incidental to enforcement rather than final substantive relief.
- An English judgment debt does not bring a worldwide freezing application within the property gateway merely because the injunction is intended to preserve assets for later execution.
Why It Matters
The decision exposes a procedural gap: PD 6B contains a gateway for freezing relief supporting enforcement of certain foreign judgments, but no equivalent general gateway for a free-standing application supporting an English judgment. The court said that correcting that anomaly is a matter for the Civil Procedure Rule Committee, not judicial reinterpretation.
The claimants were not necessarily left without recourse. They had commenced claims under section 423 of the Insolvency Act 1986 and for constructive-trust relief, which could provide established bases for service abroad and related freezing relief.