Abu Dhabi Commercial Bank PJSC v Shetty & Ors

On an application for a worldwide freezing order, the court must be satisfied that the claimant has a good arguable case, a real risk of unjustified dissipation which would leave a future judgment unsatisfied, and that relief is just and convenient. Dishonesty alone does not establish the risk. The court must examine solid evidence of dissipation separately against each defendant.

For jurisdiction, the claimant must establish a plausible evidential basis for each relevant gateway, a serious issue to be tried, and England as the forum in which the dispute can suitably be tried in the interests of the parties and justice. A company director may be served at the registered address under section 1140 of the Companies Act 2006. The gateway concerning a contract governed by English law is rarely available against a non-party to that contract.

The claimant bank alleged that former owners, directors and senior managers of NMC Healthcare Plc and its subsidiaries had participated in a long-running fraud involving fabricated accounts, undisclosed borrowing and false representations inducing approximately US$1.2 billion of lending. It sought permission to serve the claims outside the jurisdiction, a worldwide freezing order, asset disclosure and alternative service against defendants in India and the UAE.

The application was made without notice. The central issues were whether the bank had a good arguable case, whether the jurisdictional gateways and forum requirements were met, whether there was a real risk of unjustified dissipation, and whether the proposed service and disclosure orders were appropriate.

1. Freezing-order test. Under section 37 of the Senior Courts Act, the bank had to show a good arguable case, a real risk that a future judgment would go unsatisfied because of disposal of assets, and that relief was just and convenient. The good arguable case threshold was not particularly onerous.
2. Underlying claims. There was a good arguable case in deceit under English law and, on the material available, under Articles 282 and 285 of the UAE Civil Code. There was also a good arguable case in unlawful means conspiracy. A defendant need not have personally made each representation where liability could arise through knowledge, adoption or procurement. Causation and loss remained matters for the substantive action.
3. Jurisdiction. The three-stage jurisdiction inquiry required a plausible evidential basis for each gateway, a serious issue to be tried, and England to be the clearly or distinctly appropriate forum. Section 1140 of the Companies Act 2006 provided a gateway for service on the first defendant at a registered address. The remaining defendants were necessary and proper parties because the claims involved common factual and legal issues and were alleged to give rise to joint and several liability.
4. The tort gateway was satisfied because the alleged misrepresentations and the underlying falsification of the accounts originated in England. The contract gateway was not satisfied. Following Alliance Bank v Aquanta Corporation [2012] EWCA (Civ) 1588 and Njord Partners SMA-Seal v Astir Maritime [2020] EWHC 1035 (Comm), it would be a very rare case for that gateway to apply against defendants who were not parties to the relevant contracts.
5. Dissipation. The risk had to be established separately against each defendant. Offshore structures were relevant but not conclusive. The court considered the alleged major fraud, concealment, obstruction, complex asset structures, share sales and departures from the jurisdiction. Taken together, those matters constituted solid evidence of a real risk of unjustified dissipation.
6. Orders. England was the most appropriate forum. Permission to serve all defendants out of the jurisdiction was granted. A worldwide freezing order, associated asset disclosure orders and service by alternative means were also granted. The case presented exceptional circumstances justifying alternative service despite the applicable service conventions.