Benjamin Gilbert & Anor v Broadoak Private Finance Limited

This is the adjourned return date for a worldwide freezing order (WFO) against the Respondents, Mrs Shahena Bleakley and King Street Capital SL. His Honour Judge Nigel Bird made the order on 4 August 2025 under the Chabra jurisdiction (described below) on the application of the Claimants without notice.

The Claimants seek the continuation of the WFO. The Respondents seek its discharge, including on the ground that the Claimants breached their duty of fair presentation and full and frank disclosure; they also apply for a declaration that the court does not have or should not exercise personal jurisdiction over them.

The first Claimant, Mr Gilbert, is an investor. The second Claimant is a corporate investment vehicle owned by him.

The Defendant, Broadoak, is an English company formerly in business providing secured finance for commercial property developments. Its majority shareholder and principal director is Mr Jamie Bleakley. Mr Gilbert is also a shareholder in and director of Broadoak, although he says that he has been excluded from its management since 2019.

The first Respondent, Mrs Bleakley, is married to Mr Bleakley, but they have been separated for three years. The second Respondent, King Street Capital SL (KSC), is a Spanish company. Mr Bleakley is the sole shareholder and chief executive officer of KSC and Mrs Bleakley is its administrator unico, an office similar to that of a sole director.

Between 2017 and 2019, the Claimants made several loans to Broadoak to fund its business activities. However, Broadoak failed to repay the balance of the debt when it fell due. On 23 July 2021, the Claimants sent a letter before action and, on 14 November 2023, they issued the present claim against Broadoak. They eventually obtained judgment, partly in default and partly after a trial in June 2025, which Broadoak did not attend. The Claimants have been able to enforce their judgment to the extent of recovering about £600,000 but there remains an outstanding judgment debt that currently stands at about £4.2m with interest and costs.

The Claimants have carried out investigations into Broadoak’s finances, including obtaining (by non-party disclosure orders) documents from the banks where Broadoak, Mr Bleakley and Mrs Bleakley held accounts. Mr Benjamin Rutledge, the Claimants’ solicitor, explained the results of those investigations in his affidavit in support of the original WFO application. It appears that Broadoak has received about £7m that cannot be accounted for in its financial statements and has not been retained in its bank accounts. Moreover, it appears that large amounts have been paid out by Broadoak to or for the benefit of Mr Bleakley and the Respondents for which there appears to be no proper purpose and some of which were paid after the Claimants had sent their letter before action. The position is complicated, but the amounts paid by Broadoak appear on the evidence to include the following (all figures approximate):

Asset disclosure provided by Mrs Bleakley pursuant to the WFO shows that she is currently the owner of a Lamborghini Urus car with a value of €175,000, a Ferrari car with a value of €180,000, and a villa in the Arabian Ranches development in Dubai with a value of AED3.5m. The Claimants’ analysis of Broadoak’s payment records indicates that Broadoak appears to have paid for those assets. A large part of the money received by Mrs Bleakley from Broadoak still remains unaccounted for.

Mrs Bleakley has served three witness statements on behalf of the Respondents. She does not directly challenge the Claimants’ evidence about the payments. She does not deny that the Respondents have received, or received the benefit of, large amounts paid by Broadoak. She does not seek to justify or explain those payments, nor does she suggest that the Respondents provided any value in return for them. The topic is addressed only briefly in her second witness statement, where she says:

‘Receipt of monies

‘8. I accept that I have received monies which have originated from my husband’s businesses (as I explain below, we have in fact been separated for the last three years). However, I understood from my husband that he was entitled to transfer any such monies as the fruits of his successful business career.’

On 30 July 2025, the Claimants applied without notice for a WFO against the Respondents. By then, the Claimants had already obtained WFOs against Broadoak (on 25 September 2024, without notice) and against Mr Bleakley (on 7 February 2025, on notice). Neither Broadoak nor Mr Bleakley actively opposed the making or continuation of the orders.

The applications against the Respondents (as well as the application against Mr Bleakley) were made under the Chabra jurisdiction. That jurisdiction, which emerged from TSB Bank v Chabra [1992] 1 WLR 231, was explained in PJSC Vseukrainskyi Aktsionernyl Bank v Maksimov [2013] EWHC 422 (Comm) by Popplewell J (cited in Lakatamia Shipping Co Ltd v Su [2014] EWCA Civ 636, [2015] 1 WLR 291) as follows:

‘7. The Chabra jurisdiction may be exercised where there is good reason to suppose that assets held in the name of a defendant against whom the claimant asserts no cause of action (the NCAD) would be amenable to some process, ultimately enforceable by the courts, by which the assets would be available to satisfy a judgment against a defendant whom the claimant asserts to be liable on his substantive claim (the CAD)…

‘In such cases the jurisdiction will be exercised where it is just and convenient to do so. The jurisdiction is exceptional and should be exercised with caution, taking care that it should not operate oppressively to innocent third parties who are not substantive defendants and have not acted to frustrate the administration of justice.’

In TSB Bank v Chabra,the court granted a freezing order on the basis that there was a good arguable case that assets apparently vested in the NCAD might be beneficially the property of the CAD and so might be available to satisfy the claims against the CAD. However, other cases, including PJSC Vseukrainskyi Aktsionernyl Bank, show that the jurisdiction is not limited to assets beneficially owned by the CAD but may be engaged whenever there is a process enforceable by the courts by which the assets would become available to the CAD.

The Claimants’ application against the Respondents was heard by Judge Bird on 4 August 2025. In their skeleton for the hearing, the Claimants argued that there was good reason to suppose that the Respondents’ assets would be available to satisfy the judgment against Broadoak by one or both of two routes. First, the Claimants could bring a claim against the Respondents in unlawful means conspiracy for entering into an agreement with Mr Bleakley to misappropriate Broadoak’s monies and transfer them into their own hands. Second, Mr Gilbert (as a minority shareholder) could bring a derivative claim on behalf of Broadoak against the Respondents for assisting Mr Bleakley’s breach of his fiduciary duties owed to the company or in knowing receipt.

That strikes me as a strange way to justify Chabra relief. If the Claimants have a claim in conspiracy against the Respondents, then they can seek freezing relief on a conventional, non-Chabra basis (indeed, it seems that that is what they have in mind in their new claim, mentioned below). And if Broadoak has a claim in knowing receipt or dishonest assistance against the Respondents, then Chabra relief could in principle be granted to preserve the value of that claim irrespective of whether the Claimants have standing themselves to bring it as a derivative action.

At any rate, Judge Bird was satisfied that Chabra relief was appropriate and granted the WFO over all the assets of both Respondents up to a limit of £3.9m. He also gave permission to serve the application on the Respondents in Spain, and by alternative methods. The return date was set as 12 September 2025 but was adjourned twice, first to 7 November 2025 at the request of Mrs Bleakley so that she could instruct solicitors, and then to 8 January 2026 by agreement of the parties.

On 22 December 2025, shortly before the present hearing, the Claimants issued a new claim form against Broadoak, Mr Bleakley, Mrs Bleakley and KSC claiming, amongst other things, relief under section 423 of the Insolvency Act 1986, damages for unlawful means conspiracy, and a declaration that Mr Bleakley, Mrs Bleakley and KSC hold funds received by Broadoak on constructive trust. In their skeleton for the hearing before me, the Claimants said that they would be entitled to apply for non-Chabra freezing relief in the new claim. However, no such application has yet been made, and the new claim has not yet been served on Mrs Bleakley or KSC. I am concerned at the present hearing only with the applications in the original claim.

The Respondents first argue that the WFO should be discharged because the Claimants breached their duties at the without-notice hearing to make a fair presentation of their application and to give full and frank disclosure. The Respondents do not say that the breaches were deliberate, but they say that they were individually and collectively culpable. I consider below each of the breaches relied on by the Respondents and the extent to which they are made out. There is inevitably a degree of overlap between the arguments about the presentation of the application and the arguments about its substantive merits, which I consider later.

The principles applicable to the fair presentation of without-notice applications are not in dispute. They were fully set out by Carr J in Tugushev v Orlov [2019] EWHC 2031 (Comm), and I need not reproduce them in full. The duty of fair presentation is, of course, ‘a high duty and of the first importance to ensure the integrity of the court’s process’ and ‘the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness’. The duty requires the applicant to make proper enquiries before making the application, and to investigate both the facts and the legal arguments that he relies on. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made.

Since the Respondents are outside England and Wales, the Claimants needed permission to serve the application notice on them. In order to obtain permission, the Claimants needed to show a good arguable case that one of the ‘gateway’ grounds in paragraph 3.1 of CPR practice direction 6B applied. The Respondents’ complaint is, in summary, that the Claimants did not adequately explain to the judge that the gateway issue raised difficult and controversial questions of law on which Claimants’ position was at least doubtful. They say that the Claimants also failed to cite any of the cases or legal texts discussing the application of the gateways, including materials that appear to favour the Respondents.

The Claimants’ case on gateways was presented at the without-notice hearing primarily through the affidavit of Mr Rutledge. He explained that the Claimants relied on four gateways:

By way of full and frank disclosure, Mr Rutledge drew attention in his affidavit to two specific counter-arguments: first, that gateway (3) might be unavailable because the substantive claim against Broadoak had already been finally determined so that there was no longer a live issue for determination between the Claimants and Broadoak to which the Respondents might be said to be a necessary or proper party; second, that gateway (10) might be unavailable because it applies only to claims, and an application for Chabra freezing relief is not a ‘claim’ for the purpose of the gateway. Gateways were also covered in the Claimants’ skeleton, which referred to Mr Rutledge’s affidavit and added this: ‘Even if it might be said that the substantive Claim has already been determined in light of the Broadoak Trial, [the Claimants] can nonetheless rely on multiple other jurisdictional gateways.’

At the without-notice hearing, there was a brief exchange between the judge and counsel about gateways:

‘[Counsel] …My Lord, our skeleton argument has addressed those jurisdictional gateways. And I think your Lordship has seen…

‘[Judge] Yes. I've seen them. It strikes me that given the stage these proceedings have reached, and the stage that service out has reached in the proceedings up to now... you’ve covered it in the skeleton argument. There’s nothing that arises. A copy of the skeleton argument will go in accordance with the undertakings with service. If there is any issue taken in respect of service, it can be raised. But I’m satisfied to the necessary extent that service out is appropriate.’

I do not doubt that the Claimants made a good faith attempt to present the gateway issue but there is nevertheless considerable force in the Respondents’ complaint that the potential difficulties with the Claimants’ position were not adequately disclosed. I have set out below the arguments about gateways as they were developed before me. The nature of those arguments shows that the gateway issue is significantly more complicated and uncertain than might have appeared from the way in which it was presented at the without-notice hearing. Whether and in what circumstances an application for an injunction can be served out of the jurisdiction on a party against whom no substantive relief is claimed are questions that have been extensively debated. They are discussed in the textbooks, including Gee on Commercial Injunctions (7th ed 2022) para 13–051 and in Grant and Mumford, Civil Fraud (1st ed 2021) paras 28–169 to 28–171. There are many relevant cases, for example the recent case of Commercial Bank of Dubai v Al Sari [2024] EWHC 3304 (Comm), where Foxton J reviewed and sought to reconcile many of the earlier authorities. None of those cases was cited by the Claimants at the without-notice hearing

It was with those considerations in mind that, when the application was listed before me on 7 November 2025, I told the parties that I wished to hear further submissions on jurisdiction and drew their attention to the section in Grant and Mumford referred to above. I had in mind particularly the statement at para 28-171 that ‘where the claim has already resulted in a judgment or arbitral award which the claimant is seeking to enforce, but the proposed Chabra defendant is overseas and has no assets here, then there is no obvious jurisdictional gateway to support any application for permission to serve the proposed Chabra defendant out of the jurisdiction’, which appeared to me to reflect the position in the present case. In response to my raising the point, the Claimants agreed to an adjournment of the hearing (an adjournment having already been requested by the Respondents, who were then still unrepresented). They asked for the opportunity to prepare ‘fully-considered submissions’ and to file further evidence, which I permitted and have now received.

In Tugushev, Carr J said (at [7(v)]) that the duty of fair presentation ‘requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise’. I accept that it is not necessary or practical for an applicant to identify every potentially relevant authority at a without-notice hearing. However, in the present case there are some important points of law and analysis that the Claimants should have appreciated and should have drawn specifically to the attention of the judge, notwithstanding his indication in argument that the issue was covered in the skeleton.

First, there appear to be no cases (at least none was cited to me) where the court has granted permission to serve an application for Chabra relief out of the jurisdiction by reference to any gateway other than gateway (3). The judge should therefore have been told that the Claimants’ reliance on gateways (10), (11) and (20) was novel and lacked any direct support in authority; indeed, some of the authorities appeared to be against it.

As for gateway (10), in Linsen International Ltd v Humpuss Sea Transport Pte Ltd [2011] EWHC 2339 (Comm), [2011] 2 Lloyd's Rep 663, Flaux J held that the gateway was not available, because an application for Chabra freezing relief was not a claim to enforce any judgment against the CAD but only ancillary relief to assist in enforcement. The Claimants raised with the judge a different counter-argument on gateway (10)—that it might apply only to a claim rather than an application—but they did not mention Linsen or any of the texts that refer to it.

As for gateway (20), in AES Ust-Kamenogorsk LLP v Ust-Kamenogorsk JSC [2011] EWCA Civ 647, [2012] WLR 920, the Court of Appeal held that the gateway was arguably (per Rix LJ) or patently (per Burnton LJ and Wilson LJ) not applicable to an application for an injunction under section 37 of the Senior Courts Act 1981. The Claimants dispute before me that that holding is binding or correct, but it is obviously relevant and should at least have been raised with the judge as a likely counter-argument to the use of gateway (20).

As for gateway (3), there is a controversy about whether the ‘anchor’ issue—i.e. ‘the real issue which it is reasonable for the court to try’, to which the party to be served must be a ‘necessary or proper party’—must be substantive in nature. In Commercial Bank of Dubai, Foxton J held at [269(vi)] that it need not be; he said that provided there is a substantive claim against the defendant proceeding in the jurisdiction, gateway (3) can apply where procedural relief is sought against that defendant, and the NCAD is a necessary or proper party to such relief. However, he also recognised at [269(i)] that different views had been expressed by Gee, by Grant and Mumford, and by Males J in Cruz City 1 Mauritius Holdings v Unitech Ltd [2014] EWHC 3704 (Comm). As I have mentioned already, the Claimants did disclose in their skeleton and evidence that, because the substantive claim against Broadoak had already been determined, it might be argued that there was no longer a live anchor issue justifying permission to serve out. But they should have made it clear that this was not just a possible or theoretical argument but one that had significant support in the textbooks and cases. Moreover, the anchor issue was not clearly formulated; in fact, at the present hearing the Claimants ended up relying on a different issue from the one presented at the without-notice hearing.

For those reasons, I conclude that the Claimants did not fairly present the gateway issue.

In summarising the test for granting permission to serve out, Mr Rutledge said in his affidavit that England and Wales must be an appropriate forum for the determination of the application. A similar statement was made in the skeleton. The Respondents argue that this was incorrect and misleading: the correct position is that England and Wales must be clearly and distinctly the appropriate forum, not merely an appropriate forum.

That was an unfortunate error; clearly the test should have been stated accurately. That said, it is a very well-known test and I am confident that the judge would have had the gist of it in mind. I cannot detect from the transcript of the oral argument or judgment at the without-notice hearing that the judge was influenced in any material way by the precise wording used by the Claimants to frame the test.

The Respondents argue that the Claimants did not fairly present the law concerning the proper approach to the scope of Chabra relief, in particular because they quoted selectively from Yukong v Rendsburg [2001] 2 Lloyd’s Rep 113.

In their without-notice skeleton, the Claimants relied on Yukong as authority for the proposition that an injunction can be granted under the Chabra jurisdiction against the general assets of a person, not only against specific, identified assets, if the person ‘is mixed up in an attempt to make the principal defendant judgment-proof and the assets or their proceeds are not readily identifiable in his hands’, quoting Potter LJ at [44].

The Respondents complain that the Claimants omitted the words immediately preceding that quotation, where Potter LJ said that, since the purpose of granting the injunction is to preserve the assets of the principal defendant so that they are available to meet a judgment against him, it should be ‘as specific as the circumstances permit in respect of the principal defendant’s assets of which he has possession or control’ and ‘tailored to that purpose and… no wider than is necessary to achieve it’.

The evidence before the judge was that Mrs Bleakley had received money from Broadoak over a long period, large parts of which had already been spent. Tracing and identifying specific assets of Broadoak remaining in her hands would hardly be practical and in those circumstances it was natural for the Claimants to seek an injunction over Mrs Bleakley’s assets generally. I regard it as fair for the Claimants to cite Yukong in the way that they did in support of that approach. Since the evidence showed that the value received by Mrs Bleakley from Broadoak exceeded the balance of the judgment debt, net of expected recoveries, it was also fair for the Claimants to ask the Court to set the limit for the WFO at that balance (then about £3.9m). In the circumstances, I do not think that any more extensive quotation from Yukong was necessary.

However, I accept the Respondents’ argument that the Claimants should not have sought a WFO in that same amount against KSC without at least alerting the judge to the fact that the evidence then before the court (in paragraph 62 of Mr Rutledge’s affidavit) was that KSC had received only €140,000. On that evidence, it was more difficult to justify a WFO in the full amount of Broadoak’s liability.

I take these two grounds together. The Respondents argue that the Claimants failed to alert the judge to the fact that certain limitations and exceptions contained in the published standard form of worldwide freezing order were omitted from the draft presented to him.

As originally made, the WFO did not provide for living expenses; clearly it should have done. However, that was simply an error in the production of the final order, counsel having discussed with the judge at the without-notice hearing an allowance of £2,500 per month as being appropriate. The error was corrected reasonably promptly.

The draft also did not include an exception for payments in the ordinary course of business. Mr Rutledge said in his affidavit that, whilst it would be a matter for legal submissions, he understood that such an exception is not included by default in a WFO granted post-judgment. That overstates the position even where a WFO is sought against a CAD (see Michael Wilson & Partners v Emmott [2019] EWCA Civ 219, [2019] 2 All ER (Comm) 761, at [57]), and I am doubtful that it can be right as against an NCAD whose liability has not been established. I agree that those are matters that should have been raised with the judge.

The other points raised by the Respondents on the draft are more minor in my view. They say that the WFO should have been limited to assets in England, that there should have been an undertaking to issue a claim form as soon as possible, that there should have been a minimum value set for asset disclosure, and that there should have been an express exception for self-incrimination. I do not think that any of those points, individually or collectively, rise to the level of rendering the presentation unfair. Subject to the points about living expenses and ordinary course of business, the WFO was substantially in the standard form.

In presenting their case on risk of dissipation, the Claimants sought to infer that Mrs Bleakley must, as Mr Bleakley’s spouse, have been aware of his conduct in taking money from Broadoak. They said that the inference was strengthened by the fact that she was a signatory on the Moneycorp account, which had received payments of more than £3.8 million directly from Broadoak. They said that it was inherently implausible that she could have received such large amounts without being aware of their source and without being aware that she was not entitled to them. I agree that there is evidence to support the drawing of such an inference at an interlocutory stage. The Claimants also disclosed to the judge possible counter-arguments including that Mrs Bleakley might have been unaware of the payment and of her husband’s activities, that she might have believed that they were paid by Mr Bleakley in his personal capacity, that she appears to have had limited involvement in Broadoak’s business, and that there could have been a legitimate reason for Mrs Bleakley to have received the relevant payments. Overall, I consider that the presentation of that issue was fair.

As regards KSC, the Respondents argue that the Court should have been told that there was arguably no risk of dissipation in respect of KSC because it had only received €140,000 and only some time ago. However, the Claimants’ evidence set out how much KSC received and when. That was sufficient for the judge to make a fair decision as to whether a sufficient risk of dissipation was established.

The Respondents argue that the Claimants should have alerted the judge to the fact that appropriate interim relief could have been obtained in Spain just as quickly as Chabra relief could be obtained in England. I return below to the evidence on that issue. In my view, it supports the position, as presented to the judge, that there could well be a significant delay in obtaining interim freezing relief in Spain.

Finally, the Respondents argue that the Claimants failed fairly to present or formulate the potential claims which Broadoak could bring against the Respondents. I have noted above the oddity of the Claimants’ position in focussing on claims that they themselves could bring, rather than claims available to Broadoak. That said, as discussed below, I think that the general nature of the Respondents’ potential liability to Broadoak (i.e. in constructive trust, knowing receipt or dishonest assistance) was sufficiently clear on the facts presented to the judge.

In conclusion, I find that there was a significant breach of the duty of fair presentation in relation to ground 1 (gateways for service out) and more minor breaches in relation to ground 2 (forum), ground 3 (scope) and grounds 4 and 5 (terms of order). The other grounds are not made out.

As will become clear, I have ultimately decided to discharge the injunction for lack of personal jurisdiction. I have nevertheless considered whether, as a matter of discretion, the breaches of the duty of fair presentation would in themselves have justified discharge. The approach to that question was set out by Carr J in Tugushev:

‘7 (xii) Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts;…

‘(xiii)The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure.’

In the present case, I take into account:

Looking at those matters in the round, I do not regard the breaches that I have identified as sufficient in themselves to justify discharging and not continuing (or re-imposing) the order.

I turn to the question of whether the WFO should be continued. As a preliminary matter, I must be satisfied that the court has, and that it should exercise, personal jurisdiction over the Respondents. That depends on whether it is right to grant the Claimants permission to serve the application notice on the Respondents in Spain.

Under CPR 6.36, a claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of CPR Practice Direction 6B apply. It was held in Gorbachev v Guriev [2022] EWHC 1907 (Comm), affirmed [2022] EWCA Civ 1270, [2023] KB 1, that the same procedure applies to the service of an application notice against a non-party (in Gorbachev the application notice being one for non-party disclosure). Jacobs J, whose judgment was upheld by the Court of Appeal, reached that conclusion by reference to CPR 6.39, which provides that, where an application is served out of the jurisdiction on a person who is not a party to the proceedings, that person may dispute jurisdiction as if he were a defendant. Jacobs J said:

‘63… [I]t is clear from CPR 6.39 that where an application notice is issued against a non-party to the proceedings, permission can be obtained to serve the application notice out of the jurisdiction. That provision applies generally to application notices against non-parties…

‘64… CPR 6.39 provides (implicitly) that the prior rules for service out of the jurisdiction apply to the application against the non-party. Those rules include the list of gateways in PD 6B, nearly all of which begin with the words a “claim is made”. It follows that CPR Part 6, and in particular CPR 6.39, contemplates that “claims” which are of a procedural character are nevertheless within its scope.’

Consistently with that, CPR rule 6.2 defines ‘claim’ as including any application made to commence proceedings and provides that ‘claim form’, ‘claimant’ and ‘defendant’ are to be construed accordingly. In Gorbachev, Jacobs J accepted at [66–70] the submission that a claim and proceedings are closely interlinked: ‘proceedings are what is consequent on a claim, and a claim is what leads to the commencement of proceedings… the word “proceedings” should be seen in the context of the width of the word “claim”’. The Claimants in the present case can therefore be treated as initiating proceedings against the Respondents by issuing their application notice seeking Chabra relief.

The Claimants must show that there is a good arguable case that one or more of the jurisdictional gateways applies. However, as Leggatt J held in Flota Petrolera Ecuatoriana v Petroleos De Venezuala [2017] EWHC 3630 (Comm) at [14], ‘where a question of law arises on an application in connection with service out of the jurisdiction and that question of law goes to the existence of jurisdiction, the court will normally decide the question rather than only asking whether there is a good arguable case’ (although he added that there are exceptions where the question is a particularly difficult one or is in controversial or developing area). There is logic to that approach because a question of law relevant only at the jurisdictional stage might otherwise never be finally answered. In the present case, it seems right that I should ‘grasp the nettle’ in relation to the various issues between the parties concerning the interpretation and effect of the gateways.

Gateway (2) applies where ‘a claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction’. The Claimants argue that this gateway applies because Mrs Bleakley has assets in the jurisdiction that are caught by the WFO. According to her asset disclosure, she holds a bank account at HSBC with a balance of about £5,000.

This gateway was raised by the Claimants for the first time in their skeleton before me. I am nevertheless prepared to consider it. The Court has the discretion to permit reliance on a new gateway not relied on when permission was originally sought; see AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647 [128–143].

The short answer is that gateway (2) does not apply to a freezing injunction. In Siskina(Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210, the House of Lords considered the effect of RSC Order 11 rule 1(1)(i), the predecessor to gateway (2). They decided that the term ‘injunction’ in the rule referred only to an injunction sought as final, substantive relief for the invasion by the defendant of a legal or equitable right of the plaintiff. It did not include a freezing injunction or other interlocutory injunction. In Convoy Collateral Ltd v Broad Idea International Ltd [2023] AC 389, the Privy Council revisited the question by reference to the East Caribbean CPR 7.3(1)(b), which is in materially the same terms as RSC Order 11 rule 1(1)(i) and gateway (2). They upheld the decision in Siskina about the interpretation of injunction in the rule.

Gateway (3) applies where ‘a claim is made against a person (“the defendant”) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and – (a) there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and (b) the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.’

In their skeleton for the present hearing, the Claimants describe the ‘real issue which it is reasonable for the court to try’ by reference to their new claim against Broadoak, Mr Bleakley, Mrs Bleakley and King Street. They say that there are many such issues in that claim that are common to all the parties ‘including whether Broadoak’s purpose in making the transfers it did for no consideration was such as to trigger liability of the NCADs under section 423 IA 1986; and whether the parties conspired together to defraud the Claimants’. They say that the same issues arise on their application for a WFO in relation to the question of whether there is good reason to suppose that assets held in the name of the Respondents would be available to satisfy the judgment against Broadoak.

I do not regard that as sufficient to engage the gateway. Those issues may well arise in the new claim, but they are not live in the present proceedings between the Claimants and Broadoak. Final judgment has already been entered against Broadoak and there are no pending issues on the pleadings, whether substantive or procedural, that remain to be tried as between the Claimants and Broadoak. For gateway (3) to apply ‘there must actually be a common issue to be investigated as against the anchor defendant and the NCAD… the mere possibility that such an issue might arise at some point cannot be sufficient’ (Commercial Bank of Dubai at [280(i)], citing Cruz City 1 at [74]). As for the new claim, that is not before me, and no application has yet been made in it either for permission to serve out or for freezing relief, whether under the Chabra jurisdiction or otherwise.

In their oral submissions, the Claimants sought to advance an entirely different argument. They argued that there is an anchor issue arising between the Claimants and Mr Bleakley in the application against him for Chabra relief (which was served on him within the jurisdiction). The issue is the ownership of a property at Calle Duque 5, Cartagena, Spain, valued at €800,000. It arises because Mr Bleakley is the registered owner of the property but, in its asset disclosure, KSC claims to be the true owner. The Claimants say that that the Respondents are necessary or proper parties to the dispute about who owns the property.

I am not prepared to admit that new, late, argument. It was not addressed in the skeleton and comes too late for the Respondents to have a proper opportunity of responding to it. It appears unsound on its face. The ownership of the Cartagena property is not currently an issue in the proceedings between the Claimants and Mr Bleakley, and never has been. The Claimants sought and obtained Chabra relief against Mr Bleakley, including an order restraining dealings in the Cartagena property, on the basis that he was the owner. He did not contest that, indeed, he did not participate at all in the application. No further relief relating to the property is currently sought by or against Mr Bleakley, and the proceedings between the Claimants and him have concluded. There is no application by the Claimants for determination by the court of any issue as to the ownership of the property; it is in any case doubtful that the Court would entertain one given that it is real property out of the jurisdiction. I cannot see how it could be an anchor issue as the proceedings are currently formulated.

I add for completeness that it is also uncertain whether gateway (3) can be invoked where permission is sought to serve an NCAD out of the jurisdiction on the basis that it is a necessary or proper party to procedural relief sought against another NCAD served in the jurisdiction. Foxton J left that point open in Commercial Bank of Dubai, saying (at [267]) that, although a principled argument could be advanced in its favour, it appeared to be against the weight of the authorities. I do not need to comment on the point.

Gateway (10) applies where ‘a claim is made to enforce any judgment’. I have already mentioned, in the context of fair presentation, Flaux J’s holding in Linsen International that gateway (10) is not available for an application for Chabra relief because it is not a claim or application to enforce any judgment against the CAD but only ancillary relief to assist in enforcement. That is consistent with Convoy Collateral, where the Privy Council explained at [89] that the purpose of a freezing injunction is not in itself enforcement but ‘to prevent the right of enforcement from being rendered ineffective by the dissipation of assets against which the judgment could otherwise be enforced’. The Claimants had no real answer to those points in oral argument. They referred to a decision of Waksman J in Re Devas Multimedia America Inc [2021] EWHC 1944 (Comm) [15-16] but that carries no precedential weight because it was a decision made without notice and without contrary argument.

Flaux J also held that gateway (10) is limited to enforcement against assets in this jurisdiction of a defendant who is out of the jurisdiction. That is controversial because there are two conflicting appeal decisions: Linsen International Ltd and Others v Humpuss Sea Transport Plc Ltd [2011] EWCA Civ 1042, which held that it was so limited, andTasarruf Fonu v Dermirel [2007] EWCA Civ 799, which held that it was not (and which was not cited in Linsen). I do not need to resolve that controversy.

Gateway (11) applies where ‘the subject matter of the claim relates wholly or principally to property within the jurisdiction’. The Claimants argue that the subject matter of their application relates wholly or principally to the judgment debt, which, as an English judgment against an English company, is property within the jurisdiction. They rely on Re Banco Nacional de Cuba [2001] 1 WLR 2039, where Lightman J said at [33] that the rule cannot be interpreted as confined to claims relating to the ownership or possession of property but extends to any claim for relief so long as related to property located within the jurisdiction. They also rely on Lakatamia Shipping Company Ltd v Su [2023] EWHC 1874 (Comm), where Bryan J applied the gateway to a claim in unlawful conspiracy (and similar torts) where it was alleged that the defendant had helped the judgment debtor dissipate its assets and so reduced the value of the English judgment debt.

There is obviously a connection between the application and the judgment debt, inasmuch as the relief sought is intended to assist in enforcement of the debt. However, absent specific authority (and none was cited), I do not think that it would be right to treat an application for Chabra relief, even one made post-judgment, as one whose subject matter relates ‘wholly or principally’ to the judgment debt. The application is more directly concerned with the assets held by the NCADs, specifically whether they are available to the CAD and whether there is a risk of their dissipation.

In their oral submissions (which were made in response to the Respondents, who opened the hearing), the Claimants sought to take up that last point, relying on the fact that Mrs Bleakley had previously received money in England (in the Moneycorp account) and still retains a modest credit balance (about £5,000) on her English HSBC bank account. They also argued that, if they could establish jurisdiction in respect of an asset present in the jurisdiction, either now or historically, then they could use gateway (4A) (‘a further claim is made against the same defendant which arises out of the same or closely connected facts’) to expand jurisdiction to other assets of the Respondents worldwide.

I am not prepared to admit this ambitious new argument. Again, it was raised for the first time in responsive oral submissions, without having been trailed in correspondence or skeleton, and it was addressed only briefly and without citation of any authority (beyond reference to a decision on a without-notice application). The Respondents have not had a fair opportunity to respond to it. It raises a number of potentially difficult questions, including whether it is necessary for the property of an NCAD to be within the jurisdiction at the time of the application, and whether the existence of a low-value or insignificant asset in the jurisdiction (e.g. the HSBC account) can be used as an anchor to bring in claims against other assets.

Gateway (20) applies where ‘a claim is made under an enactment which allows proceedings to be brought and those proceedings are not covered by any of the other [gateways]’. The Claimants argue that, if the application does not pass through any of the gateways set out above, then it passes through gateway (20). They say that their application is a ‘claim’ (relying on Gorbachev), that it is made under section 37 of the Senior Courts Act 1981 (which provides that ‘the High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so’), and that section 37 is an enactment that ‘allows proceedings to be brought’.

I was referred to an extrajudicial discussion of gateway (20) by Foxton J in a talk entitled ‘The Big Freeze: The Rise and Rise of the Mareva Injunction’, also mentioned by him in Commercial Bank of Dubai. He said:

‘While [gateway (2)] may not be available, what about [gateway (20)] which provides a service out gateway for claims brought under any enactment which allows proceedings to be brought?

‘a. In Orexim Trading v Mahavir Port [2018] EWCA Civ 1660, the Court of Appeal suggested that the first question which arises in this context is whether there is a relevant territorial limit on the operation of the statute. If there is not, then presumptively it should be possible to serve the proceedings out of the jurisdiction. On that basis, it was held that a claim under s.423 of the Insolvency Act 1986 could, in principle, be served out of the jurisdiction through this gateway.

‘b. In Gorbachev v Guriev [2023] EWCA Civ 327 the Court of Appeal held that a claim for third party disclosure under s.34 of the Senior Courts Act 1981 could be served out of the jurisdiction through the same gateway, on the basis that a claim for relief under the Senior Courts Act 1981 was brought ‘under’ any enactment.

‘c. In Broad Idea, [12], [20], [40] and [118]. it was noted that the statutory power to grant injunctions is conferred by s.37(1) of the Senior Courts Act 1981.

‘d. It would seem to follow that, unbeknown to Lord Diplock in The Siskina and the Privy Council in Mercedes Benz and Broad Idea, there was a basis for serving a freestanding application for freezing order relief out of the jurisdiction all along – just under a different gateway.’

In Commercial Bank of Dubai, the applicant sought to pursue that suggestion in argument but because of time constraints at the hearing Foxton J decided to leave it out of consideration.

I was also provided with a report of a talk by Henshaw J on injunctions, ‘“Frozen 2”: An Update on Commercial Injunctions and Associated Jurisdictional Issues’, in which he described the gateway (20) suggestion as an ‘intriguing possibility’ but said that there were counter-arguments worthy of serious consideration.

I have already held that by issuing their application notice the Claimants can be treated as making a ‘claim’ and bringing ‘proceedings’ against the Respondents. The more controversial question is whether section 37 is an enactment which ‘allows’ such proceedings to be brought, thereby engaging gateway (20). That is a question of statutory interpretation. The principles were considered in Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd [2018] EWCA Civ 1660, [2018] 1 WLR 4847, a case where the claimant sought to use gateway (20) to serve a claim to set aside a transaction under section 423 of the Insolvency Act 1986. The Court of Appeal held that it is implicit in gateway (20) that the enactment must allow proceedings to be brought against persons outside England and Wales. Subject to that, however, there is no limitation on the gateway and no presumption for or against its application, and it is no longer right to regard the assumption of jurisdiction over persons outside England and Wales as exorbitant.

The parties did not cite any authority to me on what is meant in the gateway by an enactment that ‘allows’ proceedings. In context, ‘allows’ must in my view be used in the sense of ‘authorises’ or ‘provides for’. More specifically, I would read the phrase ‘an enactment which allows proceedings to be brought’ as meaning ‘an enactment which establishes the procedural right to bring proceedings’. That seems logical: if a statute itself creates a procedural right to bring a claim, and to bring it against a foreign person, then a claimant or applicant seeking relief under the statute should not need to look elsewhere for a jurisdictional gateway. However, I do not think that the mere fact that a claim or application may be connected with or dependent in some way on an enactment can in itself be enough to engage gateway (20); that would widen the gateway enormously.

The Respondents rely on AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, [2012] 1 WLR 920, as authority that section 37 is not an enactment that allows proceedings to be brought. The Court of Appeal was in that case considering an appeal against the grant of an extra-territorial anti-suit injunction. The gateway (20) issue was not necessary for the ultimate decision because permission was granted to serve out on other grounds (and that decision was upheld in the Supreme Court [2013] UKSC 35 without reference to gateway (20)). However, all three members of the court separately opined on it:

The Claimants argue that those opinions are not only non-binding, because they are obiter, but also do not survive the partial disapproval of Siskina in Convoy Collateral, where the Privy Council held that the court has the power to grant a freezing injunction against a person even when no substantive claim is made against them. It is true that in the passage quoted above Burnton LJ made reference to Siskina, but I do not think that it is right to treat the opinions as dependent on its correctness and so as undermined by Convoy Collateral. The opinions were concerned with the scope and meaning of gateway (20), not with the scope of the power to grant an injunction. The point that was being made, as expressed by Rix LJ, is that section 37 is concerned with remedies: it empowers the court to grant an injunctive remedy (or to appoint a receiver) in proceedings properly brought, however they may come about, but it does not in itself establish a right to bring proceedings. That is not inconsistent with Convoy Collateral.

I have considered AES alongside the later decision in Gorbachev, which was concerned with an application for an order for disclosure from a non-party made under section 34 of the Senior Courts Act 1981 and CPR 31.17. At first instance, Jacobs J held that the application was a claim under an enactment which allows proceedings to be brought. In reaching that decision, Jacobs J considered and distinguished AES as follows ([2022] EWHC 1907 (Comm) [82]):

‘AES was not therefore concerned with either s.33 or s.34 SCA. I do not consider that there is an analogy between the specific statutory entitlement (subject to rules of court) to make applications pursuant to those sections, and the general power to grant the remedy of an injunction which is conferred by s.37 SCA. Both of the former sections provide a potential self-standing right to make applications against non-parties to proceedings, albeit that in the case of s.33 SCA there may be a potential cause of action to be advanced in subsequent proceedings. They are not ancillary to other remedies against those parties within existing proceedings. In any event, the obiter statements of the Court of Appeal would now have to be reconsidered in the light of the recent decision of the Privy Council not to follow The Siskina see Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24.’

The Court of Appeal upheld Jacobs J’s decision and reasoning. They too distinguished AES on the ground that it was ‘dealing with different statutory provisions’; see [2023] EWCA Civ 327 at [35(4)].

Supporting that distinction, I note that Gorbachev was concerned with section 34 of the Senior Courts Act 1981, which expressly provides for the power to order disclosure to be exercised ‘on the application, in accordance with rules of court, of a party to any proceedings’. It establishes a specific procedural right that otherwise would not exist to make an application that otherwise could not be made; in that sense it ‘allows proceedings to be brought’. No similar wording appears in section 37 or needs to be implied into it.

The opinions expressed in AES were obiter and so are not formally binding. However, noting the distinction between AES and Gorbachev, I treat those opinions as persuasive authority that (unlike section 34) section 37 is not an enactment that itself ‘allows proceedings to be brought’ but is concerned only with remedies available in proceedings that are otherwise properly brought.

I am fortified in that approach by the surprising consequences that would flow if the Claimants’ position on gateway (20) were right. First, there is already a gateway, gateway (2), applicable to claims for domestic injunctions, i.e. injunctions ordering the defendant to do or refrain from doing an act within the jurisdiction. That gateway, and the territorial limitation that it embodies, would be redundant if a claim for non-domestic injunction could anyway pass through gateway (20). Henshaw J made that point in his ‘Frozen 2’ talk:

‘In a case where that specific gateway does not apply, why should the court be entitled to assume jurisdiction under the ‘enactments’ gateway instead? True it is that more than gateway can apply in any given case, but this approach would mean that any injunction application fell within the gateway, seemingly making the §3.1(2) gateway redundant.’

Moreover, once a claim for an injunction passes through gateway (20), that potentially opens gateway (4A) for any further claim (of any kind) against the same defendant arising out of the same or closely connected facts. That would risk rendering the rest of the gateway system redundant in any case where an injunction is claimed, reducing jurisdiction to a question of forum.

I have therefore decided that I should follow the approach in AES and hold that gateway (20) is not available for the Claimants’ application.

The Respondents argue, in the alternative, that gateway (20) is also excluded in its terms because the proceedings against the Respondents are ‘covered by’ (at least) gateway (2). As I understand their argument, that is not because the application for Chabra relief actually passes through gateway (2) (as I have already held, it does not) but because, as a claim for an injunction, it is within the general category of claims that fall within the overall scope of gateway (2). Since it is, in that sense, covered by gateway (2), gateway (20) is not available as a fall back or alternative.

No authority was cited in support of that argument, but it has some attraction. There is no conceptual difficulty in a claim or application passing through multiple gateways; and that is not unusual. It is therefore hard to see what purpose there would be in excluding gateway (20) just because a claim passes through a different gateway—why should it not pass through both? No other gateway operates exclusively in that way. There would therefore be some sense to the Respondents’ approach of treating each gateway as, in effect, setting the rules for the admission or refusal of a particular type of claim, with gateway (20) applying only to claims of a type not within the scope of another gateway.

On reflection, however, I cannot see how the court could coherently determine the scope or coverage of any gateway other than by reference to the description in the gateway of the claims that pass through it. Taking gateway (2) for example, I do not see how a claim for a non-domestic injunction could be treated as ‘covered by’ a gateway that in its terms applies only to a domestic injunction. I therefore conclude that the proceedings initiated by the Claimants’ application are not ‘covered by’ gateway (2) and so would pass through gateway (20) if (contrary to what I have decided above) the other conditions to that gateway were satisfied.

I have decided that none of gateways (2), (3), (10), (11) or (20) is applicable. It follows that permission to serve the application notice on the Respondents out of the jurisdiction should not have been granted and cannot be maintained. That is sufficient to require the discharge of the WFO.

However, for completeness I have considered the other issues raised by the parties on their applications.

The Claimants would also need to show that England is clearly and distinctly the appropriate forum for their application, that is, the appropriate forum for deciding whether the Respondents’ assets should be frozen.

That is a discretionary exercise that requires to me to weigh up the factors connecting the case with England and those connecting it with Spain, the only rival jurisdiction. Given my decision on the gateway issue, it is a hypothetical exercise and one that might depend on which gateway the application would pass through (and why) if my decision were wrong. My views on forum should therefore be treated as to that extent provisional.

The Claimants identified nine factors pointing to England. Not all of them were persuasive. The fact that a new claim has recently been issued in England cannot be relevant to jurisdiction in the present claim, particularly given that no permission has yet been granted to serve the new claim out of the jurisdiction. The location of witnesses is not relevant since the application will not require oral evidence. The familiarity of the Claimants’ lawyers and of the court with the litigation also carries no weight given that the issues on the application are fairly narrow ones that do not require specialist knowledge. However, I agree that the following matters point strongly towards England as the appropriate forum.

In arguing for Spain as an appropriate alternative forum, the Respondents rely mainly on the facts that Mrs Bleakley is resident and KSC is incorporated there, that their assets are predominantly in Spain, that the Claimants have asserted in correspondence possible Spanish law claims against the Respondents, and that the court could not grant permission to enforce the WFO in Spain.

The Respondents also dispute that adequate urgent relief is unavailable in Spain. They have served no Spanish law evidence of their own, but they rely on a Spanish law opinion provided to them by the Claimants shortly before the hearing in response to questions raised in correspondence. Since that new opinion is not in evidence, I am reluctant to place too much weight on it, but the passages I was shown from it appear to support the Claimants’ position that, whatever may be the formal position, the practical reality is that there are often long delays in obtaining from a Spanish court interim freezing relief of a kind that is available in England.

I have considered all the forum points raised by the parties as elaborated in their written and oral arguments. It will often be more appropriate for an application to freeze assets to be heard and decided by the court in the place where the assets are located, not least because the order can then be enforced by that court directly against the assets. In this case, however, I have decided that the three factors I identify in paragraph 90 above make England a clearly and distinctly more appropriate forum than Spain for the hearing and resolution of the Claimants’ application for Chabra freezing relief.

The material summarised in paragraphs 7 and 8 above shows good reason to suppose that Mr Bleakley, in his capacity as director of Broadoak, caused payments to or for the benefit of the Respondents that were not in the interests of Broadoak, that had no other proper purpose, and that were therefore made in breach of his fiduciary duty.

In their skeleton, the Respondents say that they have a ‘compelling case’ that they received the money from Broadoak without any knowledge of wrongdoing by Mr Bleakley. I do not agree. The evidence adduced by the Claimants supports the inference that the Respondents were aware (or would have been aware, if they had made proper enquiries) that they had no right to the money, at the least to the standard of ‘good reason to suppose’. The Respondents did not explain, in argument or evidence, why their case on knowledge is ‘compelling’ and, as I have said, they addressed the Claimants’ evidence only in a cursory way in Mrs Bleakley’s witness statement.

The Respondents also say that the Claimants have not properly formulated the process by which the Respondents’ assets would become available to satisfy the Broadoak judgment. It is true that, as I said in paragraph 14 above, there is some confusion in the Claimants’ position in that they have failed to distinguish between their own claims against the Respondents as CADs (such as the claim in conspiracy), which might justify conventional freezing relief, and claims by or for the benefit of Broadoak, which might justify Chabra relief against the Respondents as NCADs. However, there is my view good reason to suppose from the facts asserted by the Claimants, that Broadoak could recover assets from the Respondents by a claim in constructive trust or for equitable compensation for knowing receipt or dishonest assistance, and that those assets could be used to satisfy the Broadoak judgment. The basic elements of that claim are now set out in the Particulars of Claim in the new claim (as part of what is described as the ‘Broadoak Funds Trust Declaration Claim’), which I can take for present purposes as a broad summary of the Claimants’ position on the Respondents’ liability.

As for risk of dissipation, there is, as I have said, a strong inference that Respondents knew that they had no right to receive or benefit from the money paid out by Broadoak. Significant amounts received from Broadoak appear to have been spent on luxury goods, including luxury cars and travel. The Respondents have given no proper explanation in their evidence about where the money paid out by Broadoak and/or received by them has gone.

The risk is exacerbated by the Respondents’ failure to give asset disclosure in accordance with the WFO. The Respondents blame that on the fact that, notwithstanding that the WFO permitted expenditure on legal fees, there were practical difficulties in accessing funds in their Spanish bank accounts. However, even if that is right, it is not an excuse for not complying with the clear provisions of the WFO. I reminded Mrs Bleakley of her disclosure obligations under the WFO when she appeared before me (remotely) without representation on 12 September 2025.

The asset disclosure belatedly given is also unsatisfactory in a number of respects identified by the Claimants. A Ferrari car valued at €180,000 was disclosed as belonging to King Street, when it in fact belongs to Mrs Bleakley (and appears to have been paid for by Broadoak). King Street disclosed 23 properties within the La Peraleja development, but there is evidence that it owns 32 properties. Mrs Bleakley disclosed that she held £5,000 in a bank account in England having previously said in her first witness statement that she had no assets in the jurisdiction.

For those reasons, I consider that the substantive conditions for Chabra freezing relief are satisfied. I bear in mind that Chabra relief is exceptional, but, if the court had personal jurisdiction over the Respondents, it would in my view be just and convenient to continue the WFO against them.

Permission to serve the application notice on the Respondents out of the jurisdiction should not have been granted because none of the ‘gateway’ grounds set out in paragraph 3.1 of CPR Practice Direction 6B applies. I therefore revoke the permission and set aside service. Since the court has no personal jurisdiction over the Respondents, I discharge the WFO.

It may seem harsh that the Claimants have a good claim in principle to freezing relief against the Respondents to assist in the enforcement of an unpaid judgment debt but no apparent route to establish jurisdiction. However, as Foxton J said in Commercial Bank of Dubai at [274], ‘if there is to be a general power to serve proceedings out of the jurisdiction to assist the enforcement of an English judgment debt, that is a matter for the Rules Committee’.

I will hear the parties on the form of the order.