Gilbert v Broadoak Private Finance: Court of Appeal rejects freezing order service out gateway

The Court of Appeal has dismissed an attempt to serve a worldwide freezing order application on Spanish-based respondents through a novel reading of the jurisdictional gateways for service out of the jurisdiction, in a judgement examining the statutory foundations of the court's injunctive powers.

The case, Benjamin Gilbert and BG Projects Limited v Broadoak Private Finance Limited [2026] EWCA Civ 1172, was heard by Lord Justice Jeremy Baker, Lord Justice Miles and Lord Justice Foxton on 23 July 2026, with judgement handed down on 22 September 2026. It arose from the claimants' efforts to enforce judgements totalling over £5.5 million obtained against Broadoak for unpaid loans, after disclosure revealed that the majority shareholder had allegedly diverted several million pounds from the company to accounts linked to his wife and a Spanish company they controlled.

The claimants obtained a without notice worldwide freezing order against these non cause of action defendants on a Chabra basis, but the order was set aside at the return date by a deputy High Court judge on the sole ground that no gateway existed under Practice Direction 6B permitting service of the application in Spain. On appeal, the claimants argued that three gateways applied: the Enactment Gateway, on the basis that a freezing order claim was brought under section 37 of the Senior Courts Act 1981; the Injunction Gateway, applicable to injunctions requiring a defendant to do or refrain from doing an act within the jurisdiction; and the Property Gateway, on the basis that the underlying judgement debt constituted property within the jurisdiction.

The Enactment Gateway argument rested on the combined effect of three lines of authority, namely Orexim Trading v Mahavir Point, which adopted an expansive reading of what counts as an enactment allowing proceedings to be brought; the Privy Council's decision in Broad Idea International v Convoy Collateral, which decoupled freezing injunctions from any underlying cause of action; and Gorbachev v Guriev, which held that procedural applications under sections 33 and 34 of the 1981 Act could fall within the gateway. Lord Justice Foxton, giving the leading judgement, found that section 37 was a provision of a fundamentally different character to those considered in the earlier cases, being of the most general kind and lacking any claim conferring quality, and that its purpose was to confirm and restate the pre-existing equitable jurisdiction of the court rather than to create a statutory right for claimants to assert. The obiter observations to similar effect in AES Ust-Kamenogorsk Hydropower Plant were therefore correct.

On the Injunction Gateway, the court held it remained bound by the House of Lords authority in The Siskina, recently reaffirmed by the Privy Council in Broad Idea, that the gateway applies only to injunctions sought as final relief for the invasion of a legal right, not interim or freezing relief. On the Property Gateway, the court found no sufficiently strong connection between the subject matter of a freezing order application, which concerns the risk of dissipation and availability of assets, and the underlying judgement debt itself.

Permission to appeal on the latter two gateways was refused, and the substantive appeal on the Enactment Gateway was dismissed. The court noted that the claimants retained separate proceedings under section 423 of the Insolvency Act 1986 capable of being served out of the jurisdiction on established grounds, potentially rendering the outcome less consequential than it first appeared.