Freezing order application success for Faisal Osman

Faisal Osman, instructed by Nick Marsh, James McSweeney, and Emily L. at Quinn Emanuel Urquhart & Sullivan, LLP, successfully appeared for the first defendant in AAA v BBB & Others, a hard-fought, multi-defendant cross-border freezing order application heard by Henshaw J.

𝐖𝐡𝐲 𝐭𝐡𝐢𝐬 𝐜𝐚𝐬𝐞 𝐦𝐚𝐭𝐭𝐞𝐫𝐬: The judgment provides important clarification on the strict application of procedural rules in arbitration-related applications and reinforces the absolute duty of candour on without notice applications. It confirms that tactical litigation considerations cannot override mandatory service requirements.

𝐊𝐞𝐲 𝐩𝐫𝐨𝐜𝐞𝐝𝐮𝐫𝐚𝐥 𝐩𝐨𝐢𝐧𝐭𝐬 𝐟𝐫𝐨𝐦 𝐭𝐡𝐞 𝐣𝐮𝐝𝐠𝐦𝐞𝐧𝐭:

i) Arbitration claim forms must be served within 1 month under CPR 62.4(2) - no different rules for overseas service
ii) Retrospective extensions under CPR 7.6(3) have an exceptionally strict test requiring proof that “all reasonable steps” were taken, but the claimant was “unable” to serve
iii) Tactical considerations (such as protecting without notice applications) don’t satisfy the “unable to serve” requirement
iv) CPR 62.4(2) doesn’t create a general discretionary power - the same strict tests apply as for ordinary claim forms

𝐖𝐡𝐚𝐭 𝐡𝐚𝐩𝐩𝐞𝐧𝐞𝐝:

i) Claim form issued in December but not served by the January deadline
ii) Extension application made 2½ months later was granted on the papers by Dias J, but subsequently set aside
iii) Material non-disclosure found on both freezing order and extension applications

The defendants were able to demonstrate to the court the claimant’s procedural failures and lack of urgency in pursuing their application. Henshaw J was particularly critical of the claimant’s conduct, noting the “serious” nature of the non-disclosures (even if negligent) and that the claimant’s representatives appeared not to understand the fundamental requirements around claim form service.

𝐏𝐫𝐚𝐜𝐭𝐢𝐜𝐚𝐥 𝐠𝐮𝐢𝐝𝐚𝐧𝐜𝐞 𝐟𝐨𝐫 𝐩𝐫𝐚𝐜𝐭𝐢𝐭𝐢𝐨𝐧𝐞𝐫𝐬:

i) Plan service strategy immediately upon issuing arbitration claim forms
ii) Apply for extensions before the deadline if difficulties arise
iii) Always disclose procedural complications on without-notice applications
iv) Don’t rely on retrospective extensions - the evidential burden is very high

The case also raised interesting questions about freezing orders against non-parties to arbitration agreements, an area likely to be clarified by the Arbitration Act 2025.