PD 6B “Enactment Gateway” does not permit service out of free-standing freezing order applications relying on s.37 Senior Courts Act 1981

Case: Gilbert & Anor v Broadoak Private Finance Ltd [2026] EWCA Civ 1172 (CA (Civ Div), Foxton LJ giving the lead judgment; Miles LJ and Jeremy Baker LJ concurring), 22 September 2026.
Appeal from: [2026] EWHC 153 (Comm) (Deputy High Court Judge).
Core topic: service out of the jurisdiction for a post-judgment freezing order (including on a Chabra basis) against “non-cause of action defendants” (NCADs).

1. Introduction

The claimants (a judgment creditor and its corporate vehicle) held an English judgment against an English company (the judgment debtor). While enforcing that judgment, they obtained third-party disclosure suggesting substantial transfers from the judgment debtor to two Spain-based respondents (treated procedurally as NCADs) for no proper purpose. On that material, they secured a without-notice worldwide freezing order (WFO) against the NCADs on a Chabra basis—i.e. alleging the NCADs held assets beneficially belonging to, or otherwise amenable to enforcement against, the judgment debtor.

At the return date, the High Court largely upheld the merits of granting the WFO (including risk of dissipation) but discharged it for want of personal jurisdiction: none of the service-out gateways in PD 6B para 3.1 was satisfied. The Court of Appeal dismissed the claimants’ appeal, holding—importantly—that PD 6B para 3.1(20)(a) (“the Enactment Gateway”) is not engaged by a free-standing freezing order application said to be “under” s.37 of the Senior Courts Act 1981 (SCA).

Parties (by role)

• Judgment creditors / appellants: the claimants (including an English company, BG Projects Limited).
• Judgment debtor: Broadoak Private Finance Limited (English company).
• NCADs / respondents: (i) an individual in Spain; (ii) a Spanish company linked to the judgment debtor’s majority shareholder.

Issues on appeal

• Main (permission granted): whether service out for the WFO application could be justified under PD 6B para 3.1(20)(a) because the claim was “under an enactment which allows proceedings to be brought”, the enactment being s.37 SCA 1981.
• Additional (permission refused): whether gateways for an injunction “within the jurisdiction” (PD 6B para 3.1(2)) or “property within the jurisdiction” (PD 6B para 3.1(11)) could apply to a post-judgment WFO application.

2. Summary of the Judgment

• The Court of Appeal dismissed the appeal and upheld the High Court’s conclusion that the English court lacked personal jurisdiction over the NCADs for a free-standing WFO application.
• The Enactment Gateway in PD 6B para 3.1(20)(a) does not apply merely because the High Court has injunctive powers “embodied/confirmed” in s.37 SCA 1981.
• The Court refused permission to appeal on:
  • the Injunction Gateway (PD 6B para 3.1(2)), following The Siskina and the Privy Council’s refusal in Broad Idea to disturb that line; and
  • the Property Gateway (PD 6B para 3.1(11)), because the “subject matter” of a post-judgment WFO is restraint of dealing with the respondent’s assets, not the English judgment debt as “property”.
• The Court noted a structural gap in the current gateway regime: there is a gateway for enforcement-supporting freezing relief tied to foreign judgments (PD 6B para 3.1(5A)), but no clear equivalent for domestic judgments—suggesting any change is for the Rules Committee.

3. Analysis

3.1 Precedents Cited and Their Influence

(A) Orexim Trading Ltd v Mahavir Point and Terminal Private Ltd [2018] EWCA Civ 1680, [2018] 1 WLR 4847

Orexim concerned service out under the Enactment Gateway for an application under s.423 Insolvency Act 1986 (transactions defrauding creditors). Lewison LJ articulated an expansive, purposive view: where an enactment empowers the court to make orders with extra-territorial reach, “a priori” procedural rules enabling service out would be expected.

The Court of Appeal in Gilbert treated Orexim as important context, but ultimately distinguished its logic. The key difference was that s.423 (read with s.424) is claim-conferring—it specifies who may apply and in what circumstances—whereas s.37 is a general remedial/jurisdictional provision not specifying the elements of any particular claim.

(B) Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, [2023] AC 389

Broad Idea is central to the claimants’ strategy. It reconceptualised freezing injunctions as protecting an “enforcement principle” interest and made clear that a freezing order need not be ancillary to substantive proceedings in the forum.

However, Broad Idea also refused to reinterpret rules-of-court service gateways for injunctions in a way that would allow service out where a freezing injunction is the only relief, emphasising stare decisis and that any “lacuna” should be addressed by rule amendment.

In Gilbert, the Court accepted the conceptual decoupling of freezing relief from substantive causes of action, but held that this did not transform s.37 into an enactment that “allows proceedings to be brought” under the Enactment Gateway. Conceptual evolution in injunctive theory could not, without more, rewrite the jurisdictional architecture of PD 6B.

(C) Gorbachev v Guriev [2023] EWCA Civ 1270, [2023] KB 1

Gorbachev held that applications under ss.33–34 SCA 1981 (evidence-gathering orders) can constitute “claims” and “proceedings” for PD 6B para 3.1(20)(a), enabling service out (at least where the documents were within England and Wales).

The claimants argued that, combined with Orexim and Broad Idea, Gorbachev supported a “synergistic” expansion: a free-standing WFO application should be a “claim” under s.37 capable of service out.

The Court rejected the step from ss.33–34 to s.37: ss.33–34 are narrowly framed, procedurally structured, and explicitly contemplate “applications” by defined applicants in defined circumstances—i.e. they look like claim-conferring schemes. s.37 does not.

(D) AES Ust-Kamenogorsk Hydropower Plant LLP v Ust- Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647, [2012] 1 WLR 920 (“AES”)

AES contains obiter observations that s.37 is not “an enactment which allows proceedings to be brought” because it provides a remedy within proceedings whose legal basis lies elsewhere. The Court in Gilbert treated those observations as consistent with its own analysis and as directly addressing the same structural point about s.37.

(E) Service-out gateways for injunctions: Siskina (Owners of the Cargo) v Distos Cia Naviera SA (“The Siskina”) [1979] AC 210 and Mercedes Benz AG v Leiduck [1996] AC 284 (“Mercedes”)

The Siskina establishes (for the comparable gateway wording) that the injunction service-out gateway presupposes a substantive cause of action; it is not for interim/freezing relief standing alone. Mercedes reinforced that interpretation and resisted widening it by judicial re-reading.

The Court of Appeal relied on the Privy Council’s treatment in Broad Idea, which reaffirmed The Siskina/Mercedes as settled interpretations of materially similar rule text. That closed the door to using PD 6B para 3.1(2) to serve out a freezing-only claim.

(F) Additional authorities on the nature of s.37 (statutory vs inherent equitable power)

The parties debated whether injunctive power is “inherent” (equity) or “statutory” (SCA). The Court reviewed extensive authority, including Fourie v Le Roux [2007] UKHL 1, South Carolina Insurance Co v Assurantie Maatschappij 'De Zeven Provincien' NV [1987] AC 24, Cartier International AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658, and Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47.

The Court deliberately did not decide the appeal on the threshold question “is s.37 the source of power?”, instead treating it as an overly technical detour. The decisive point was interpretative: even assuming a statutory footing, s.37 still is not the kind of enactment that “allows proceedings to be brought” for PD 6B para 3.1(20)(a).

3.2 Legal Reasoning

(A) The Court’s interpretative method

Following FS Cairo (Nile Plaza) LLC v Lady Brownlie [2021] UKSC 45, the Court construed the gateway according to its ordinary meaning and purpose. It emphasised that “gateway construction” is neutral: neither expansive nor restrictive by default.

(B) The core distinction: “claim-conferring” enactments vs general remedial/jurisdictional provisions

The Court treated PD 6B para 3.1(20)(a) as directed to enactments that themselves confer a right to bring a claim (and thereby implicitly justify service-out machinery). It stressed two linked textual signals:

• “Under an enactment” implies a strong legal link: the enactment itself (expressly or by incorporation) supplies the essential conditions/architecture of the claim.
• “Which allows proceedings to be brought” points to statutes that authorise particular proceedings by particular applicants in particular circumstances, not statutes that simply describe the court’s remedial competence in broad terms.

On that approach, s.423 Insolvency Act 1986 and ss.33–34 SCA 1981 fit: they define who can apply and (at least broadly) what must be shown. By contrast, s.37 SCA 1981:

• is drafted at the highest level of generality (“just and convenient”);
• covers a vast range of injunction types whose detailed conditions are found in case law, not in the statute;
• is directed to the court’s powers rather than conferring a claim-right on applicants;
• historically codifies/reflects pre-existing equitable powers rather than creating a new species of statutory proceeding.

(C) Why Broad Idea did not “convert” s.37 into an Enactment Gateway statute

The claimants’ “synergy” argument depended on Broad Idea severing freezing relief from substantive rights and causes of action, making freezing relief look like a free-standing claim for the exercise of the court’s injunctive power. The Court accepted the conceptual shift but held that PD 6B para 3.1(20)(a) still turns on the nature of the enactment relied upon. A general injunctive enabling provision does not become “claim-conferring” merely because the common law now recognises the availability of free-standing freezing relief in some circumstances.

(D) The Enactment Gateway “Proviso” (“not covered by any of the other grounds”)

The Court agreed (obiter) with the High Court that, if the Enactment Gateway otherwise applied, it would not be defeated simply because some other uses of the same enactment might fall within other gateways. The “coverage” question is assessed by reference to the claim actually being served out (e.g. a freezing-only application is not “covered by” a gateway limited to final/substantive injunctions within the jurisdiction).

The Court also traced the drafting history of the gateway (including the former presence of a now-removed EU Directive sub-paragraph), supporting a reading that avoids silently stripping service-out routes from established statutory schemes.

(E) Permission refusals: Injunction and Property Gateways

• PD 6B para 3.1(2) (Injunction Gateway): The Court considered it foreclosed by The Siskina and reinforced by Broad Idea’s refusal to disturb that settled interpretation of materially similar wording. Any change is for the Rules Committee.
• PD 6B para 3.1(11) (Property Gateway): The “subject matter” of a post-judgment WFO is restraint against dissipation of the respondent’s assets; the English judgment debt is at most a precondition/purpose, not the claim’s subject matter. Accepting the contrary would risk turning the gateway into a general service-out route for enforcement steps and ancillary relief—again a matter for rule-making, not judicial extension.

3.3 Impact

• No service out for “free-standing” domestic judgment enforcement WFOs under s.37: judgment creditors cannot rely on PD 6B para 3.1(20)(a) to serve a freezing-only claim on foreign NCADs by characterising it as “under” s.37.
• Reinforces a procedural asymmetry: the Court highlighted the curiosity that PD 6B includes a route for freezing orders assisting enforcement of foreign judgments (Gateway (5A)) but does not clearly supply an equivalent for domestic judgments; the Court expressly signalled that fixing this is for the CPR Rules Committee.
• Litigation strategy consequence: applicants should expect to plead substantive causes of action that engage established service-out gateways (e.g. s.423 Insolvency Act 1986, constructive trust, proprietary claims, or tort claims where available) and then seek freezing relief as ancillary.
• Conceptual discipline in gateway interpretation: the decision limits attempts to leverage the broad remedial language of s.37 into a general jurisdictional “passport” for service out.

4. Complex Concepts Simplified

• Freezing order (WFO): an interim injunction restraining a respondent from dealing with assets up to a value cap to prevent dissipation that would frustrate enforcement. It does not give the applicant a proprietary interest or priority.
• Chabra relief: freezing relief against a third party (NCAD) where there is “good reason to suppose” the third party holds assets beneficially for, or otherwise as a façade for, the judgment debtor so that those assets may be available to satisfy the debt.
• Service out and “gateways”: to serve proceedings outside England and Wales with permission, a claimant must show the claim fits within a listed “gateway” in PD 6B para 3.1 and that England is the proper forum.
• Enactment Gateway (PD 6B para 3.1(20)(a)): applies where a claim is made “under an enactment which allows proceedings to be brought”—best understood (per this case) as a statute that itself confers a right to bring particular proceedings in defined circumstances, not a statute that merely states the court’s general powers.
• “Subject matter … relates wholly or principally to property within the jurisdiction”: focuses on what the claim is essentially about, not every precondition or factual connection. A WFO is essentially about restraining dissipation, not about adjudicating ownership/rights in a particular English-sited asset.

5. Conclusion

Gilbert & Anor v Broadoak Private Finance Ltd [2026] EWCA Civ 1172 confirms that PD 6B para 3.1(20)(a) is not a vehicle for serving out free-standing freezing order applications by treating s.37 SCA 1981 as the relevant “enactment”. The Court’s reasoning turns on statutory character: s.37 is a broad remedial provision, not a claim-conferring scheme that “allows proceedings to be brought”.

The Court also reaffirmed the settled approach that the injunction service-out gateway does not extend to freezing-only claims (The Siskina, endorsed in Broad Idea), and rejected attempts to repurpose the property gateway as a general enforcement-assistance route. The practical message is clear: absent a rules change, domestic judgment creditors seeking freezing relief against foreign third parties must anchor their applications to substantive claims that independently satisfy a recognised service-out gateway.