Benjamin Gilbert & Anor v Broadoak Private Finance Limited

Permission to serve a Chabra freezing-order application out of the jurisdiction requires an applicable gateway under CPR Practice Direction 6B. A post-judgment application seeking ancillary relief to preserve assets for enforcement does not itself fall within gateways (2), (3), (10), (11) or (20) on the facts and arguments considered.

A freezing injunction is not an injunction for final substantive relief under gateway (2). Gateway (3) requires a real issue actually pending against the anchor defendant, not a possible issue in future proceedings. Gateway (10) concerns enforcement and does not extend to ancillary Chabra relief. Section 37 of the Senior Courts Act 1981 provides remedial power but does not itself establish a procedural right to bring proceedings for gateway (20).

The claimants had obtained judgment against Broadoak Private Finance Ltd for an unpaid debt of about £4.2 million. They obtained, without notice, a worldwide freezing order against Mrs Shahena Bleakley and King Street Capital SL under the Chabra jurisdiction, alleging that Broadoak’s assets had been transferred to or for the benefit of the respondents.

On the adjourned return date, the respondents sought discharge, alleging failures of fair presentation and lack of personal jurisdiction. The claimants relied on gateways (2), (3), (10), (11) and (20) in paragraph 3.1 of CPR Practice Direction 6B. The central issue was whether any gateway permitted service of the application notice out of the jurisdiction.

1. Fair presentation. The claimants significantly failed to present the gateway issue fairly. They did not adequately disclose the novelty and uncertainty of their reliance on gateways (10), (11) and (20), or authorities materially adverse to their position. There were lesser breaches concerning the forum test, the scope of Chabra relief and omitted standard-order provisions. Those breaches would not alone have justified discharge, given the absence of deliberate wrongdoing and the strength of the substantive case.
2. Applicable procedure. Under CPR 6.36 and 6.39, permission is required to serve an application notice on a non-party out of the jurisdiction. CPR rule 6.2 permits the application to be treated as initiating proceedings. Questions of law going to jurisdiction should ordinarily be decided by the court rather than reduced to the good arguable case test.
3. Gateways. Gateway (2) does not apply to a freezing injunction. Gateway (3) requires an actually pending common issue against the anchor defendant; possible issues in a new claim or concluded proceedings are insufficient. Gateway (10) is unavailable because Chabra relief assists enforcement but is not itself enforcement. Gateway (11) is not engaged because the application principally concerns the respondents’ assets and their possible availability to satisfy Broadoak’s judgment, rather than the judgment debt as property within the jurisdiction.
4. Gateway (20) is unavailable. Following the persuasive reasoning in AES Ust-Kamenogorsk [2011] EWCA Civ 647, section 37 of the Senior Courts Act 1981 supplies a remedial power but does not establish the procedural right to bring proceedings. The distinction from Gorbachev [2023] EWCA Civ 327 is that section 34 creates a specific procedural right to apply for non-party disclosure.
5. Although the substantive conditions for Chabra relief were satisfied, including good reason to suppose that the respondents had received assets recoverable by Broadoak and a risk of dissipation, the court lacked personal jurisdiction. Permission to serve out was revoked, service was set aside and the worldwide freezing order was discharged.