Summary
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).
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
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Key cases cited
21 authorities cited.
- Broad Idea International Ltd v Convoy Collateral Ltd (British Virgin Islands) [2021] UKPC 24
- VTB Capital plc v Nutritek International Corp and others [2013] UKSC 5
- Alexander Gorbachev v Andrey Grigoreyvich Guriev [2023] EWCA Civ 327
- Alexander Gorbachev v Andrey Grigoryevich Guriev [2022] EWCA Civ 1270
- Michael Wilson & "Partners" Ltd v Emmott [2019] EWCA Civ 219
- Orexim Trading Ltd v Mahavir Port And Terminal Private Ltd & Ano [2018] EWCA Civ 1660
- Lakatamia Shipping Company Ltd v Su & Ors [2014] EWCA Civ 636
- Linsen International Ltd v Humpuss Sea Transport Pte Ltd [2011] EWCA Civ 1042
- AES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647
- YUKONG LINE LTD. v. RENDSBURG INVESTMENTS CORPORATION AND OTHERS [2001] 2 Lloyd's Rep 113
- Commercial Bank of Dubai PSC & Ors v Abdalla Juma Majid Al Sari & Ors [2024] EWHC 3304 (Comm)
- Lakatamia Shipping Company Ltd v Nobu Su (aka Hsin Chi Su aka Nobu Morimoto) & Ors [2023] EWHC 1874 (Comm)
- Alexander Gorbachev v Andrey Grigoryevich Guriev [2022] EWHC 1907 (Comm)
- Tugushev v Orlov & Ors (No. 2) [2019] EWHC 2031 (Comm)
- Flota Petrolera Ecuatoriana v Petroleos De Venezuala S.A. [2017] EWHC 3630 (Comm)
- Cruz City 1 Mauritius Holdings v Unitech Ltd & Ors [2014] EWHC 3704 (Comm)
- PJSC Vseukrainskyi Aktsionernyl Bank v Maksimov & Ors [2013] EWHC 422 (Comm)
- Linsen International Ltd & Ors v Humpuss Sea Transport Pte Ltd & Ors [2011] EWHC 2339 (Comm)
- In re Banco Nacional de Cuba (Banca Carige SpA Cassa di Risparmio di Genova e Imperia v Banco National de Cuba) [2001] 1 WLR 2039
- TSB Private Bank International SA v Chabra [1992] 1 WLR 231
- Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA (Ibrahim Shanker Co v Distos Cia Naviera SA) [1979] AC 210
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Cases citing this case
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