Notification injunction granted in important clarification of the ‘good arguable case’ test for freezers

07/12/23

The High Court (Butcher J) yesterday granted a notification injunction in favour of the Claimant, Ziyavudin Magomedov, against Russian state-owned oil pipeline company, Transneft. The injunction is linked to the Claimant’s $13.8bn claim which alleges that Magomedov’s business empire was unlawfully wrested by the operation of two conspiracies into Russian state hands.

In his judgment, Butcher J provided important clarification of the threshold required to satisfy the ‘good arguable case’ test for an injunction. Mr Justice Butcher confirmed that the test of ‘good arguable case’ for freezing orders is not the same as the test for ‘good arguable case’ in the context of jurisdictional gateways. The test for freezing orders remains that as set out in The Niedersachsen, i.e., a case which is more than barely capable of serious argument, but not necessarily one which the judge considers would have a better than 50 per cent chance of success. It is not necessary for an applicant to show that they have ‘the better of the argument’ or for the three-limbed test of ‘good arguable case’ in Brownlie v Four Seasons Holdings Inc [2017] UKSC 80; [2018] 1 WLR 192 for jurisdictional gateways to be transposed across to the context of freezing orders.

This case provides a welcome clarification of the law. Mr Justice Butcher held that two recent High Court cases, Harrington v Mehta [2022] EWHC 2960 (Ch) and Chowgule v Shirke [2023] EWHC 2815 (Comm) were wrong in law insofar as they apply the three-limb test derived from Brownlie in the context of freezing orders.

The judgment is here.