Earlier this year, I wrote about the High Court’s decision in Gilbert & Anor v Broadoak Private Finance Ltd [2026] EWHC 153 (Comm) in which David Quest KC, sitting as a Deputy Judge of the High Court, found that permission should not have been given to serve an injunction application out of the jurisdiction, where the applicant relied on s.37 of the Senior Courts Act 1981 (SCA) as “an enactment which allows proceedings to be brought”.
The judgment in Gilbert referred to two extrajudicial talks. One by Henshaw J with the title “Frozen 2: An Update on Commercial Injunctions and Associated Jurisdictional Issues” and the other by Foxton J (as he then was) entitled “The Big Freeze: The Rise and Rise of the Mareva Injunction”. In the latter, Foxton J raised the possibility that developments in judicial thinking, reflected in three judgments, meant it might be argued that applicants could rely on s.37 to serve a claim out of the jurisdiction. Sitting in the Court of Appeal, in Gilbert & Anor v Broadoak Private Finance Ltd [2026] EWCA Civ 1172, Foxton LJ upheld the findings at first instance and clarified that, in his talk, he was “not intending to suggest that this outcome would be anything other than highly surprising” and that he merely wished to indicate that such an outcome “could be said to be the unintended consequence of the three developments in the law”.
Summary of the facts
In Gilbert, the applicants sought to continue a freezing order made under the Chabra jurisdiction. This exceptional jurisdiction may be exercised where there is good reason to suppose that assets held in the name of a person, against whom the claimant asserts no cause of action (the “NCAD”), would be amenable to a court-enforced process to satisfy a judgment against a defendant liable on the substantive claim (the “CAD”). The jurisdiction gets its name from TSB Bank v Chabra [1992] 1 WLR 231 where the court granted a freezing order on the basis that there was a good arguable case that assets vested in the NCAD might be beneficially the property of the CAD and available to satisfy the claims against him.
An applicant who wishes to serve an application notice on a non-party out of the jurisdiction must pass through a “gateway” in paragraph 3.1 of PD 6B. Gateway 20, or the “Enactment Gateway”, applies where a claim is made under an enactment which “allows” proceedings to be brought and those proceedings are not covered by any other gateway. In Gilbert, the enactment the applicants sought to rely upon was s.37, which provides that the High Court may grant an injunction in all cases in which it appears to the court to be just and convenient to do so.
The argument at first instance
At first instance, David Quest KC, sitting as a Deputy High Court Judge, considered the principles in Orexim Trading v Mahavir Port [2018] EWCA Civ 1660 and obiter commentary in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647. In Orexim, the Court of Appeal held that it is implicit in the Enactment Gateway that the enactment must “allow” proceedings to be brought against persons outside England and Wales. In AES, the Court of Appeal did not consider s.37 as an enactment which allowed proceedings to be brought. Instead, it considered that s.37 provided for a particular remedy within proceedings whose legal basis was elsewhere. AES was distinguished in Gorbachev v Guriev [2022] EWHC 1907 (Comm), affirmed [2022] EWCA Civ 1270 (which concerned an application for an order for disclosure against a non-party under s.34 SCA and CPR 31.17), on the basis that ss.33 and 34 SCA created specific, self-standing statutory entitlements to apply, whereas s.37 conferred a general power to grant injunctive relief.
As well as precedent, the Judge was also directed to extrajudicial commentary on the possibility that s.37 could be used as the basis for an application to serve a claim out of the jurisdiction through the Enactment Gateway. One such was a talk delivered by Foxton J (as he then was) in 2024 in a talk entitled “The Big Freeze: The Rise and Rise of the Mareva Injunction”. In brief, Foxton J had pondered whether the combination of Orexim, Gorbachev and Convoy Collateral Ltd v Broad Idea International Ltd [2023] AC 389 led to an argument that applicants seeking to serve a claim out of the jurisdiction could rely on s.37 as the enactment required by the Enactment Gateway.
Finding that the applicants could not rely on s.37 for the purposes of service out of the jurisdiction, the Judge remarked on the consequences that could flow from a contrary decision: (1) gateway 2, which concerned domestic injunctions, would be redundant; and (2) once a claim passed through the Enactment Gateway, gateway 4A may swing open to permit a further claim against the same defendant which arises out of the same or closely connected facts, potentially rendering the entire gateway system redundant in any case where an injunction is claimed.
The need to be claim-conferring
Although valiant attempts were made to advance other potential grounds of appeal, the appellants received permission to appeal only on the question of whether s.37 could be used for the purposes of the Enactment Gateway. In this respect, the appellants advanced, in substantially developed form, the argument sketched out by Foxton LJ in his earlier talk.
Giving a judgment with which Miles and Baker LJs agreed, Foxton LJ focussed on the language of the Enactment Gateway. Separating “under an enactment” and “which allows proceedings to be brought”, it was clear to Foxton LJ that the gateway was concerned with “claim-conferring” enactments, which give claimants falling within the scope of the provision the right to assert the statutory claim, in contrast to enactments whose purpose is simply to define the powers or jurisdiction of particular courts. The claims advanced in Orexim and Gorbachev, under s.423 of the Insolvency Act 1986 and ss.33(1) and (2) of the SCA 1981 respectively, were claim-conferring in character. In contrast, s.37 confirms the court’s ability to grant a particular form of relief, but only addresses the many and various circumstances in which it will be granted. Foxton LJ also noted that s.37(1) does not contain any language suggesting it is claim-conferring and it is apparent from its history that its purpose was not to create a statutory claim, but to confirm, restate or codify the pre-existing equitable jurisdiction of the court.
Having considered the other arguments raised by the appellants, Foxton LJ accepted that the outcome of the Court of Appeal’s judgment “might not be seen as entirely attractive”, given the Judge found that all of the conditions for the grant of freezing order relief were satisfied. However, he also noted that the appellants now had other means of obtaining the requisite relief and it was a matter for the Rules Committee as to whether there ought to be a gateway for service out of the jurisdiction of applications for relief intended to assist in the enforcement of an English court judgment.
Practical implications
The decision confirms that s.37 is not a passport to service out. Unless another gateway applies, an English judgment creditor cannot serve a free-standing application for Chabra relief on an overseas NCAD merely because the order would assist enforcement of an English judgment.
The practical lesson is an investigative one. The first instance and appeal judgments simply emphasise the need to follow the money at the earliest juncture. Where assets appear to have moved to connected persons abroad, claimants should consider whether the evidence supports substantive claims against those parties, for instance alleging knowing receipt or conspiracy, that can themselves be served out and provide a proper procedural foundation for freezing order relief.
Disclaimer: This article is provided for general information only and is accurate as of 27 September 2026. It may not be updated to reflect subsequent legal or other developments. It does not constitute legal advice and should not be relied on as such. Specific legal advice should be obtained in relation to particular circumstances.
