AAA v BBB (a company registered in Curacao) (Consequentials)

The court may not grant fresh interim relief in support of a foreign arbitration under Arbitration Act 1996, section 44, where the statutory conditions of urgency, tribunal permission or party agreement are not satisfied. It may also refuse relief where there is no sufficient connection with England and Wales.

Serious and culpable failures of full and frank disclosure ordinarily justify discharge of a freezing order and refusal to renew it. Relevant considerations include culpability, the importance of the undisclosed matters, the nature of the order and the merits. A party must not retain any advantage obtained through a wrongfully obtained order. Permission for collateral use of freezing-order materials requires cogent and persuasive reasons establishing special circumstances.

This was a consequentials hearing following the court’s earlier judgment, in which the claim form and the order extending time for service were set aside and a worldwide freezing order was discharged.

The claimant sought permission to use materials obtained under the original freezing order in support of a proposed fresh application for permission to serve new arbitration proceedings out of the jurisdiction and for a new freezing order. The defendants opposed permission, relying on jurisdictional limits, serious disclosure failures and the absence of a sufficient risk of dissipation.

1. Jurisdiction under section 44. The court refused permission to use the materials for a fresh freezing-order application. Under Arbitration Act 1996, section 44(3) and (4), absent urgency the court could act only with the tribunal’s permission or the parties’ agreement. The evidence did not establish urgency. The arbitration had been on foot for some months and there had been ample time to seek the tribunal’s consent. Section 44 applied to a foreign-seated arbitration through section 2(3).
2. The court could also refuse relief because the foreign seat made an order inappropriate where there was no evidence that the defendant had assets in England and Wales within the court’s enforcement jurisdiction. The possible asset identified was not the defendant’s asset and was situated in Belize.
3. Disclosure failures. The claimant’s breaches of full and frank disclosure were serious and culpable. The failures concerned the expired claim form, the failure promptly to disclose that fact, further non-disclosures on the extension application, financial security and accounting data potentially showing performance of the underlying contract. The usual sanction was discharge of the freezing order and refusal to renew it.
4. The relevant factors included the applicant’s culpability, the importance of the undisclosed matters to the outcome, the nature of the order and the merits. The freezing order’s nature aggravated the position. In any event, the evidence did not establish a risk of dissipation.
5. Collateral use. The original freezing and ancillary disclosure orders had been wrongly obtained. It would therefore be wrong retrospectively or prospectively to permit collateral use, since that would allow the claimant to retain an advantage from wrongful proceedings. The ordinary grounds for release from the collateral-use undertaking were also absent. They required cogent and persuasive reasons establishing special circumstances, which had not been shown.
6. The claimant’s application was refused. The existing freezing order was set aside, and no new freezing order was granted, even on an interim basis.

The judgment was delivered at a consequentials hearing following an earlier judgment of the same court handed down on 30 June 2025. The judgment under appeal is not stated.