Abu Dhabi Commercial Bank PJSC v Shetty & Ors

The Court heard a without-notice, private application by Abu Dhabi Commercial Bank for a worldwide freezing order and ancillary disclosure against six defendants alleged to have been centrally involved in a long‑running fraud at NMC Healthcare Plc and the NMC Group. The judge applied the well‑known tripartite test for freezing relief under section 37 of the Senior Courts Act and relevant authorities: the applicant must show a good arguable case, a real risk of dissipation, and that the order would be just and convenient.

The judge found a good arguable case in deceit and unlawful‑means conspiracy on the basis of the Freeh/administrator evidence (Mr Davis and Mr Frangulov), the Muddy Waters revelations and the pleaded particulars; held that English or UAE law could govern but that the Bank had a good arguable claim under either; and concluded that there was a real risk of dissipation given the alleged sophistication, offshore structures and conduct of the defendants. The Court accepted jurisdiction by using s.1140 Companies Act 2006 to anchor service on the first defendant and by passing alternative tort and service‑out gateways for the other defendants. The application for the worldwide freezing order, permission to serve out by alternative means and an asset disclosure order was granted.

This was a first instance, without‑notice and private application by Abu Dhabi Commercial Bank for urgent Mareva relief and related disclosure against six former owners and senior officers of NMC plc and NMC Healthcare. The Bank sought to preserve assets to meet a claim for just over US$1 billion said to arise from fraudulent misrepresentations and an unlawful‑means conspiracy which induced the Bank to provide six core credit facilities to the NMC Group.

• Background and parties: NMC plc was a London‑listed company which, following the publication of a Muddy Waters report, internal and external investigations (Freeh Group) and administrator investigations, revealed very large undisclosed debt and allegedly fabricated accounts. The defendants included the founder and principal shareholders and senior finance officers of NMC.
• Nature of relief sought: an urgent worldwide freezing order, asset disclosure and permission for service out by alternative means.
• Procedural matters: the hearing was held in private under CPR 39.2 and the application was made without notice; the claimant relied heavily on the administrators’ evidence (Davis; Frangulov) as presented in the supporting affidavit.

Issues framed by the Court:

1. Whether the Bank had a good arguable case in deceit and unlawful‑means conspiracy (considering both English law and UAE law under Rome II);
2. Whether the English court had jurisdiction and whether one or more jurisdictional gateways were made out for service out;
3. Whether there was a real risk of dissipation of assets; and
4. Whether alternative methods of service and an asset disclosure order should be permitted.

Reasoning and conclusions:

• Good arguable case: the judge concluded there was a good arguable case of deceit and unlawful‑means conspiracy on the pleaded particulars and on the independent evidence of the administrators and investigators. The alleged features included the maintenance of two sets of accounts, undisclosed borrowings, misappropriation of loan proceeds and concerted concealment.
• Applicable law: the court analysed Rome II and accepted that either English or UAE law might apply but that the Bank had a good arguable claim under each (including UAE Civil Code Articles 282, 285 and 291).
• Jurisdiction and gateways: the judge accepted that s.1140 Companies Act 2006 provided a valid anchor for service on the first defendant and, on that basis, that the other defendants were necessary and proper parties. He also accepted an alternative tort gateway (damage resulting from acts committed within the jurisdiction) but rejected reliance on the contract‑governed gateway where the defendants were not parties to the relevant English law contracts.
• Risk of dissipation: the Court found solid evidence that the defendants had both the incentive and the means to dissipate assets, including the use of complex offshore structures, departures from the UAE and obstructive conduct during the investigation.
• Relief granted: the judge made a worldwide freezing order, ordered ancillary asset disclosure, and permitted service out by alternative means (including electronic methods) as appropriate in exceptional circumstances.

The judgment also notes the Bank’s estimate of loss (approximately US$1,003,550,058.04) and records careful consideration of full and frank disclosure material. The return date and final drafting of the order were to be completed with counsel.

This was a first instance application. The Court granted the claimant's without‑notice application: a worldwide freezing order was made together with an asset disclosure order and permission for alternative service out. The judge held that the Bank had a good arguable case in deceit and unlawful‑means conspiracy (under English law or, alternatively, UAE law), that there was a real risk of unjustified dissipation of assets, and that England was the distinctly and conveniently appropriate forum. The judge relied on s.37 Senior Courts Act for injunctive jurisdiction and s.1140 Companies Act 2006 as an anchor for service on the first defendant, and authorised service by alternative means and the standard asset disclosure provisions.