Summary

Two judgment creditors traced money out of the company they had sued. About £5m had left its bank account and €2.55m of it reached a Spanish account in the name of the majority shareholder's wife.

They obtained a without notice worldwide freezing order against her and a Spanish company on the Chabra basis. The deputy judge found every substantive condition for it met and set it aside anyway, for want of jurisdiction over two respondents in Spain. The Court of Appeal dismissed the appeal.

Background and facts

The claimants held a minority shareholding in Broadoak, an English company which provided finance for commercial property investment. The majority shareholder was Mr Bleakley. The first respondent is his wife and the second a Spanish company he owns.

Loans advanced between 2017 and 2019 were not repaid. Default judgment was entered for £3,314,303.19 and a trial judgment added £2,186,240.22. Freezing orders followed against Broadoak and against Mr Bleakley, who has given none of the disclosure ordered.

Disclosure from Broadoak's bank showed Mr Bleakley had removed some £5m from the company's account, £3.8m of it through a currency dealing company. A Norwich Pharmacal order against that company traced €2.55m to a Spanish account in Mrs Bleakley's name.

At the return date the deputy judge held that there was good reason to suppose the payments were made for no proper purpose, that the risk of dissipation was made out, and that England would have been the clearly and distinctly more appropriate forum. He set the order aside because no gateway in paragraph 3.1 of Practice Direction 6B allowed service of the application in Spain.

The issue

The claimants argued that an application for a freezing order is a claim made under section 37 of the Senior Courts Act 1981, and so passes through gateway 20(a). They built that on Orexim, which read the gateway widely, on Broad Idea, which cut the freezing injunction loose from any cause of action, and on Gorbachev, which held that procedural applications are claims.

The respondents answered that the power to grant an injunction is inherent and equitable, confirmed rather than conferred by section 37; that The Siskina confines the injunction gateway to final substantive relief; and that the subject matter of a Chabra application is the respondents' assets.

The decision

The court declined to decide the threshold point. Whether the injunctive power is now statutory or remains inherent would have turned on what it means to say an inherent jurisdiction has been confirmed or codified, and that was left for a case which needs it.

The appeal turned on the character of section 37. Section 423 of the Insolvency Act 1986 and sections 33 and 34 of the Senior Courts Act 1981 say who may apply and in what circumstances. They confer claims. Section 37 does not.

Nor does s.37(1) contain any language suggesting that it has a claim-conferring character: the language of the section is directed to the court, not applicants for relief.Foxton LJ, paragraph 85

An application for freezing relief is therefore not a claim under section 37(1), and section 37(1) is not an enactment which allows proceedings to be brought. The appeal was dismissed on that ground.

A further conclusion on that gateway is an alternative and decided nothing. Had the claim otherwise fallen within it, the proviso excluding proceedings covered by another ground would not have barred it.

Permission on the injunction gateway was refused. The Siskina confines it to an injunction sought as final relief for the invasion of a legal or equitable right, and the Privy Council in Broad Idea refused to depart from that. Changing the rule is for the Rules Committee.

Permission on the property gateway was refused too. The subject matter of the application was the restraint of the respondents' dealings with their own assets, and some connection with property here does not satisfy the gateway.

The freezing order would not itself effect the discharge of the judgment debt, but would simply prevent the dissipation of assets against which some process of execution might subsequently be levied.Foxton LJ, paragraph 118

Two questions were left open. Whether the property gateway is confined to claims concerning a legal right was not argued and not decided. The argument that a domestic freezing order passes through it was held to require very careful consideration, no more.

It can certainly be said to be a curiosity that there is a gateway permitting service out of an application for a freezing order intended to assist in the enforcement of a foreign judgment (Gateway (5A)), which would extend to Chabra relief, but no equivalent gateway for domestic judgments.Foxton LJ, paragraph 125

Practical implications

An English judgment buys nothing against a person abroad who is not a defendant to the claim. These claimants had traced the money, proved the risk of dissipation and satisfied the forum test, and lost the order.

Construction creditors meet this pattern often. An enforcement judgment against a contractor or a special purpose vehicle is followed by disclosure showing the money went to a director's spouse or a related company overseas. The freezing order cannot be served.

The answer is a substantive claim against the recipient. These claimants had by then issued under section 423 of the Insolvency Act 1986 and for constructive trust relief, which can be served out and can carry freezing relief.

Benjamin Gilbert & Anor v Broadoak Private Finance Limited [2026] EWCA Civ 1172, Court of Appeal (Civil Division), Lord Justice Jeremy Baker, Lord Justice Miles and Lord Justice Foxton, judgment handed down 22 September 2026, case number CA-2026-000379-Y, on appeal from the London Circuit Commercial Court (KBD) [2026] EWHC 153 (Comm). Appeal dismissed and permission to appeal refused on two further grounds.