GFH Capital Limited v David Lawrence Haigh & Ors

The duration of a freezing injunction is determined by its language, construed restrictively and in context. Where an English order under section 25 of the Civil Jurisdiction and Judgments Act 1982 supports foreign proceedings and restrains assets until disposal of “the Claim”, that claim may be the foreign substantive claim rather than the ancillary English claim. The injunction then ends immediately when the specified proceedings are disposed of. Pending or possible appeal rights do not leave the injunction in limbo. A claimant requiring continuing protection must seek a continuation or fresh order. The order’s purpose, surrounding provisions, the issuing court’s reasons and the distinction between principal and ancillary defendants are relevant to its construction.

GFH obtained an English freezing injunction under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of substantive proceedings against Mr Haigh in the DIFC courts. The order restrained Mr Haigh’s English assets until disposal of “the Claim or further order”. After judgment for GFH in the DIFC proceedings, the High Court declared that the injunction had expired on 4 July 2018: [2022] EWHC 3110 (Comm). GFH appealed, arguing that “the Claim” meant the English Part 8 claim and, alternatively, that the DIFC proceedings remained live because of a possible appeal. The central issue was the proper construction and duration of the injunction.

By a majority, the Court of Appeal dismissed the appeal. Phillips LJ gave the leading judgment and Peter Jackson LJ agreed. Arnold LJ dissented on ground 1 but agreed with the majority’s conclusion on ground 2.

1. Construction of the order. A judicial order is construed as a single coherent instrument. Its language is read in the circumstances before the court and patent to the parties, including the issuing judge’s reasons. Injunctions are construed restrictively because breach may have penal consequences, but the words retain their natural and ordinary meaning in their historical and procedural context: Sans Souci Ltd v VRL Services Ltd [2012] UKPC 6; Pan Petroleum AJE Ltd v Yinka Folawiyo Petroleum Co Ltd [2017] EWCA Civ 1525.
2. Meaning of “the Claim”. The majority held that the wording of the original order, particularly paragraph 3, identified the DIFC proceedings as “the Claim”. The English Part 8 claim was ancillary relief under section 25, and “disposal of the Claim” was unsuitable as a reference to final disposal of that English claim. The costs provision, the undertaking concerning use of information and the different duration of the injunction against ancillary defendants reinforced that interpretation.
3. Effect of disposal. Certainty requires an injunction expressed to continue until trial, judgment or disposal to end immediately when that event occurs. Further proceedings or an appeal do not preserve the existing order. The claimant must seek continuation or a fresh order pending appeal. The injunction therefore ended on disposal of the DIFC proceedings, at latest on 4 July 2018. The possible out-of-time appeal application did not alter that conclusion.
4. Dissent. Arnold LJ considered that “the Claim” most naturally meant the English claim in which the order was made. He relied on the claim heading and number, the English court’s jurisdiction, the costs provision and the practical and enforcement consequences of the contrary construction.

• Court of Appeal (Civil Division): By majority, dismissed GFH’s appeal and held that the injunction had expired on disposal of the DIFC proceedings. Arnold LJ dissented on the construction issue. [2024] EWCA Civ 65.
• High Court, Commercial Court: Andrew Baker J declared that paragraphs 4–7 of the order stood discharged on 4 July 2018. [2022] EWHC 3110 (Comm).
• DIFC proceedings: Sir Jeremy Cooke gave judgment for GFH on 4 July 2018.