Home Disadvantage: Gilbert v Broadoak and the Missing Gateway for Freezing Relief in Aid of English Judgments
The English court will permit service out of a freezing order application made in aid of a foreign judgment. In Gilbert v Broadoak Private Finance Ltd [2026] EWCA Civ 1172, the Court of Appeal confirmed that no gateway exists where the application is made in aid of an English judgment. The rules of the British Virgin Islands (“the BVI”) appear to share the asymmetry.
The court rejected three separate routes to service out, and each matters for practitioners, so this article takes them in turn before considering the asymmetry the court identified and the position in the BVI. Readers interested only in the English position may skip “The BVI position”. Paragraph references are to the Court of Appeal’s judgment unless otherwise stated; the first instance decision is [2026] EWHC 153 (Comm).
The facts
The claimants obtained judgments for about £5.5m against an English company that had failed to repay their loans. Disclosure obtained during enforcement revealed that some £5m had been removed from the company’s bank account by its majority shareholder. Of that sum, €2.55m was paid to a Spanish bank account in his wife’s name, and further sums may have benefited his Spanish company ([11]).
The claimants asserted no cause of action against the wife or the Spanish company, and so sought a worldwide freezing order against both on a Chabra basis: that assets held in their names were in truth available to satisfy the judgments. The order was granted without notice but discharged at the return date. Although every substantive condition for Chabra relief was satisfied, and England would have been the clearly more appropriate forum, both respondents were in Spain and none of the “gateways” in paragraph 3.1 of Practice Direction 6B (“PD 6B”) to the Civil Procedure Rules (“the CPR”) permitted service on them there ([13]-[16]).
At first instance, the claimants also relied on the necessary or proper party gateway (PD 6B paragraph 3.1(3)). It failed because, with final judgment entered, no real issue remained to be tried against the company as anchor defendant; a late attempt to use the majority shareholder, served in England with his own Chabra application, as the anchor was not admitted (first instance at [59]-[62]). Neither point was pursued on appeal ([14]).
The Enactment Gateway
The claimants’ main argument was that a freezing order application is a claim “under an enactment which allows proceedings to be brought” (PD 6B paragraph 3.1(20)(a), “the Enactment Gateway”), namely s.37(1) of the Senior Courts Act 1981 (“SCA 1981”), which empowers the High Court to grant an injunction wherever it appears just and convenient. The argument drew on Orexim (a broad reading of the gateway), Broad Idea (freezing relief detached from any cause of action) and Gorbachev (procedural applications under ss.33 and 34 SCA 1981 within the gateway) ([17]-[28]).
Foxton LJ rejected it on the language of the gateway. A claim “under” an enactment requires a strong legal connection with the statute, whose terms should supply the principal requirements for the claim ([81]); and “allows proceedings to be brought” confines the gateway to claim-conferring enactments, as distinct from those defining the powers or jurisdiction of courts ([82]).
Section 37(1) fails on both counts. It is “a provision of the most general kind”, directed to the court rather than applicants; the requirements for any particular injunction lie in case law; and its purpose was to confirm the court’s pre-existing equitable jurisdiction, not to create a statutory claim ([85]). By contrast, s.423 of the Insolvency Act 1986 (“IA 1986”) and ss.33 and 34 SCA 1981 identify who may apply and on what conditions ([84]). This confirms the obiter view in AES Ust-Kamenogorsk ([74]-[77], [88]).
The Injunction Gateway
Permission to appeal was refused on the two remaining gateways ([6]). The Injunction Gateway, PD 6B paragraph 3.1(2), applies where “a claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction”. Read literally, a freezing order might qualify. It has long been held otherwise.
In The Siskina, the House of Lords held that the predecessor rule, which added the words “whether or not damages are also claimed”, presupposed a cause of action: a claim that the defendant had invaded, or threatened to invade, a legal or equitable right of the claimant. An interlocutory injunction is merely ancillary to such a cause of action ([98]-[99]). The gateway therefore covers an injunction sought as substantive relief, usually a final injunction, but not a freezing order ([15]). The Privy Council declined to depart from The Siskina in Mercedes Benz ([100]-[101]).
Broad Idea changed the law on the court’s power to grant freezing relief, but not on service out. The Privy Council held that a freezing injunction need not rest on any cause of action, so the court may grant a free-standing freezing order against a respondent over whom it has personal jurisdiction ([22]-[24]). On how that jurisdiction over a respondent abroad is obtained, however, the Board followed The Siskina in construing the equivalent BVI gateway, saying that any wrong turning should be corrected by amending the rules ([102]-[103]).
The claimants argued that Broad Idea had removed the premise of The Siskina, and that dropping the words about damages from the current gateway showed it was no longer confined to substantive relief. The Court of Appeal accepted that this gave the argument some basis, but held that the rule’s meaning had been settled at the highest level and left untouched by successive revisions of the CPR; any revision is a matter for the Rules Committee ([102]-[104]). The result is a clear line between the court’s power to grant a freezing order and its jurisdiction over a respondent abroad.
The Property Gateway
The second was the Property Gateway, PD 6B paragraph 3.1(11), which applies where “the subject matter of the claim relates wholly or principally to property within the jurisdiction”. The claimants argued that the English judgment debt was such property ([108]).
The court disagreed. The subject matter of a claim is identified at a relatively high level of generality, and “wholly or principally” requires a relatively strong connection with the property ([116]). The subject matter of a freezing order application is the restraint of the respondents’ dealings with their assets. The judgment satisfies one requirement for freezing relief, but the court must also be satisfied of a risk of dissipation, of assets amenable to execution, and that the order would be just and convenient ([117]). Treating the judgment debt as the subject matter would elevate one means of satisfying one requirement into the whole; a freezing order does not discharge the debt, but merely prevents the dissipation of assets against which execution might later be levied ([118]).
The consequences would also have been striking: every application for a process of execution in respect of an English judgment, with ancillary relief, and arguably any application to assist the enforcement of a debt with an English situs, could be served out ([119]). That would go well beyond the enforcement gateway, PD 6B paragraph 3.1(10), which covers a claim “to enforce any judgment” but not an application for freezing relief, which only assists enforcement (first instance at [63], following Linsen International Ltd v Humpuss Sea Transport; not challenged on appeal, [14]). Whether there should be a general power to serve out in aid of enforcing an English judgment is, as Foxton J had said in Commercial Bank of Dubai v Al Sari [2024] EWHC 3304 (Comm), [274], a matter for the Rules Committee ([119]).
The asymmetry
Had the claimants been enforcing a foreign judgment, they could have applied for a freezing order in aid of it and served the application in Spain under PD 6B paragraph 3.1(5) (referred to in the judgment as Gateway (5A)), the gateway for interim relief in aid of foreign proceedings under s.25 of the Civil Jurisdiction and Judgments Act 1982 (“CJJA 1982”), which the court considered would extend to Chabra relief ([125]). That gateway was added in 1997, as RSC Order 11 r.8A (SI 1997/415), after Mercedes Benz held that the general gateways did not cover interim relief in support of foreign proceedings. Holding an English judgment, the claimants had no equivalent route. The court described this as “a curiosity”, said that whether there ought to be a gateway for applications to assist in enforcing an English judgment is a matter for the Rules Committee, and noted that s.423 IA 1986 may not provide the necessary relief in every case ([125]).
The BVI position
The Eastern Caribbean Supreme Court Civil Procedure Rules (Revised Edition) 2023, which apply in the BVI (“the ECSC CPR”), present a similar picture. References to rules in this section are to the ECSC CPR unless otherwise stated. The BVI injunction gateway, now r.7.3(2)(b), is the rule construed in Broad Idea, so the analysis above applies equally. The BVI property gateway, r.7.3(6), is narrower still, requiring the whole subject matter of the claim to relate to property within the jurisdiction. The BVI enforcement gateway, r.7.3(5), is confined to claims to enforce judgments and awards “made by a foreign court or tribunal”, so it does not reach a BVI judgment. In any event, a freezing order is relief in aid of enforcement, not enforcement, which is why even the wider English gateway does not cover freezing relief.
Foreign proceedings, by contrast, are expressly provided for. Rule 7.3(11) permits service out of an application for interim relief where proceedings “have been or are about to be commenced in a foreign jurisdiction”. Its statutory counterpart, s.24A of the Eastern Caribbean Supreme Court (Virgin Islands) Act (“the ECSC Act”), inserted in January 2021, empowers the court to grant such relief even though it “is not ancillary or incidental to any proceedings in the Territory”, and defines interim relief to include “an order against a non-cause of action defendant”. It closely follows s.25 CJJA 1982, including the power to refuse relief as inexpedient where the court has no other jurisdiction (s.24A(2) of the ECSC Act; s.25(2) CJJA 1982). The BVI legislature thus displaced The Siskina’s reasoning on the court’s power, and provided expressly for Chabra relief, but only in aid of foreign proceedings. There is no equivalent for relief in aid of the BVI court’s own judgments.
Neither self-certification nor an application for leave changes the position. In England, service out under PD 6B requires permission (CPR r.6.36). In the BVI, court process may be served out without permission on a certificate signed by the claimant or its legal practitioner (r.7.2(1), r.7.6). The certificate must, however, identify the r.7.3 ground relied upon (r.7.6(b)), and on any application to set service aside the claimant must show that the proceedings fall within r.7.3 (r.7.8(2)(b), (4)(b)). The certificate must also state a belief that the claimant has a good cause of action (r.7.6(a); likewise r.7.4(4)(a) and r.7.8(2)(a), (4)(a)). That is an awkward fit for a Chabra application but not an independent obstacle: s.24A(4) of the ECSC Act and r.7.3(11) together permit service out of an application for relief against a non-cause of action defendant, so the words must be read to accommodate such applications. Self-certification removes the need for prior permission, not the need for a gateway. Leave under r.7.4 is no alternative: it may be granted only if the claim relied upon is listed in r.7.3 (r.7.4(4)(b)).
The one open question is r.7.3(10), which, unlike its English counterpart, permits service out of a claim under an enactment “where, by virtue of an enactment, the court has power to hear and determine any claim or proceeding”. That wording looks to enactments conferring power on the court, precisely the kind that Gilbert placed outside the English gateway ([82]). The enactment relied upon would be s.24(1) of the ECSC Act, under which an injunction may be granted by interlocutory order “in all cases in which it appears to the Court or Judge to be just or convenient that the order should be made”.
In my view the argument is open, but it faces three difficulties. First, the feature that distinguishes r.7.3(10) from the English gateway does less for the claimant than it appears. Section 24(1) of the ECSC Act is, as the Privy Council noted in Broad Idea at [74], in substantially the same terms as s.25(8) of the Supreme Court of Judicature Act 1873, a statutory predecessor of s.37(1) SCA 1981. Spry’s The Principles of Equitable Remedies, cited to the Court of Appeal in Gilbert, regards s.25(8) as passed “largely ex abundanti cautela” (out of abundant caution) rather than to confer new powers (Gilbert at [44]-[45]), and the Supreme Court has said that s.37(1), “like its statutory predecessors, merely confirms and restates” the court’s pre-existing power (Wolverhampton City Council v London Gypsies and Travellers, quoted in Gilbert at [53]). Against that, the Privy Council in Broad Idea described s.24(1) as giving the High Court its power to grant injunctions (at [76]), and the Court of Appeal in Gilbert did not decide whether the English power is now statutory ([63]). Whichever view is right, the BVI court’s general jurisdiction is itself statutory: s.7(1) of the ECSC Act confers on it the jurisdiction of the English High Court as at 1 January 1940. If a power existing “by virtue of an enactment” were sufficient, every claim within the BVI court’s jurisdiction would satisfy that part of r.7.3(10), so it cannot be what confines the rule.
Secondly, the rule is therefore confined by the requirement that the claim be made “under” an enactment, and the Court of Appeal’s reasoning on that word applies with full force: nothing in s.24(1) says when a freezing order, still less Chabra relief, will be granted ([81], [85]-[87]). Thirdly, the BVI has made specific provision for free-standing relief against non-cause of action defendants, in s.24A and r.7.3(11), and confined it to foreign proceedings. Reading r.7.3(10) as a general route for serving such applications would leave r.7.3(11) largely redundant.
Conclusion
Timing matters. While a substantive claim against the debtor is still proceeding, there is authority, although controversial, that a foreign recipient may be served as a necessary or proper party to freezing relief sought against the debtor (Commercial Bank of Dubai v Al Sari at [269(vi)], noted at first instance at [29]). Once judgment is entered, that route closes unless a fresh substantive claim supplies the anchor. Thereafter, a creditor pursuing recipients abroad must find a substantive claim to carry the freezing application, or a forum whose rules treat the judgment as foreign. The claimants in Gilbert have taken the first course: their claims under s.423 IA 1986 and for constructive trust relief would appear to provide an appropriate vehicle for their complaints, can be served out on established authority, and can provide a basis for seeking freezing order relief, so the respondents’ success may yet prove pyrrhic ([123]).
