Fraud, Asset Tracing and Enforcement Update | October 2026
Published on 15 October 2026
Developments in cross-border disputes law and practice in England and Wales
Welcome to our latest update and summary of recent developments for professionals and businesses looking to navigate fraud, international enforcement and asset recovery issues.
This edition covers significant recent first‑instance decisions, including civil liability of foreign lawyer for assisting a breach of a freezing injunction, the enforceability of US judgments for multiple damages, conspiracy between companies and their directors, jurisdiction and third party rights, the effect of abuse of process on freezing orders, and anti-suit injunctions.
Osborne Clarke's asset recovery team is available to discuss, as ever, any of the issues raised in this update, please get in touch with our specialist team.
Court of Appeal finds Monaco lawyer liable for breach of English freezing order made against its client
The freezing order's Babanaft proviso does not prevent civil liability
The Court of Appeal in in Lakatamia Shipping Co Ltd v Nobu Su/Hsin Chi Su (aka Su Hsin Chi; aka Nobu Morimoto) & Ors [2025] has unanimously held that a Monaco lawyer who followed his client's instructions to transfer funds in breach of an English worldwide freezing order was liable in a damages claim for unlawful means conspiracy.
Worldwide freezing orders typically contain a standard provision, known as the Babanaft proviso, which states that the order's terms "do not affect or concern anyone outside the jurisdiction of this court" save for the respondent to the order, and certain other specified exceptions.
Reversing the High Court's decision, the Court of Appeal held that while the Babanaft proviso prevents a third party outside the jurisdiction from being directly bound by the order, it does not give the foreign third party a defence to a civil claim against them for participating in an unlawful means conspiracy.
English court refuses to block law firm from deposing potential witness in Arkansas
Litigants can use procedures available abroad that do not prejudice English proceedings, even if no home equivalent exists
The English High Court has refused an application by BHP Group (UK) Limited and BHP Group Limited, together BHP, for an anti-suit injunction to prevent English law firm Pogust Goodhead (PG) from using US discovery procedures to gather pre-action testimony from a witness for the purposes of potential English litigation.
PG obtained subpoenas against André de Freitas, a former executive of the Renova Foundation in Brazil, from an Arkansas court under section 1782 of title 28 of the United States Code, a federal provision that enables evidence to be taken in the US to assist proceedings in other jurisdictions. After unsuccessfully opposing the grant of the subpoenas in the Arkansas court, BHP attempted to obtain an anti-suit injunction from the English court to prevent PG from enforcing the subpoenas. The English court declined to grant the anti-suit injunction.
The decision provides helpful guidance on the circumstances in which the English courts will (or will not) grant an anti-suit injunction to restrain proceedings in the United States under section 1782.
US multiple damages judgments found unenforceable in England under the Protection of Trading Interests Act 1980
Even the compensatory element of a foreign judgment for multiple damages cannot be severed from the punitive element
The Court of Appeal's judgment in Motorola Solutions v Hytera, handed down on 19 December 2025, addresses an important question concerning the enforcement of foreign, particularly US, judgments in England on which there had been conflicting authority.
The court held that the prohibition in section 5 of the Protection of Trading Interests Act 1980 which precludes enforcement of a foreign "judgment for multiple damages", prohibited the enforcement of the compensatory element of the damages award and not just the multiple element.
The decision is significant for judgment creditors who have the benefit of a judgment awarding multiple damages. Litigants in US courts where enforcement in England is likely to be necessary will now have reason to consider, at an early stage, whether it makes sense to seek multiple damages at all.
High Court confirms that a sole director can conspire with their own company as a matter of English civil law
A civil conspiracy claim does not need two independent minds when a company and its sole director act together
The High Court in Lux Films Ltd v Fowler & Andrew Fowler Media Ltd [2026] addressed a previously undecided question: whether a sole director can conspire with their own company for the purposes of unlawful means conspiracy, where, while legally distinct, the actions of the two are in substance the actions of the same person.
The court has now confirmed that such a conspiracy is possible. It rejected the defendants' argument that conspiracy requires an agreement between two independent minds, and, in particular, refused to import principles from the law of criminal conspiracy.
As the defendant was not represented at the trial, the decision has less precedential weight, However, it is nonetheless helpful in confirming that claims for unlawful means conspiracy can be brought against companies and their directors when they are both involved in intentional wrongdoing even where the director is the sole director of the company.
English Court of Appeal discharges worldwide freezing orders in fraud claim due to abuse of process
A court can strip a litigant of valuable freezing orders obtained through unconscionable conduct
Salinas Pliego and Ors vs Astor Assessment Management and Ors [2026] is a cautionary tale about the price of unconscionable conduct in litigation. A party secured valuable interim remedies in a fraud claim, only to forfeit them due to abusing the court's process.
The claimants had successfully obtained worldwide freezing orders against the defendants in a fraud action. Unknown to their then-solicitors, they engaged a private investigation firm to trick the defendants' solicitor into divulging privileged information, and applied to court for summary judgment based on that information.
The Court of Appeal found that this was an abuse of process of the court. By way of sanction, the court struck out the summary judgment application and discharged the worldwide freezing orders. In practice, this could make any eventual judgment against the defendants worthless.
The court warned that so-called "privilege hunting" is a serious abuse of process, and solicitors presented with such material must consider not only their professional obligations, but also the risk of criminal exposure.
Contractual jurisdiction clauses: when third parties are bound.
English court finds that third party with rights under a contract is required to observe the jurisdiction clause
In Campeau v Gottex [2026], the English High Court considered whether third parties who derived rights under a contract could enforce the agreement's exclusive jurisdiction, and, in particular, whether the third party could serve proceedings outside of the jurisdiction without permission of the court as a result.
The court agreed that, as a matter of contractual interpretation, the jurisdiction clause extended to disputes over third party rights. Although not strictly necessary given his conclusion on contractual construction, the judge also addressed the controversial question of whether the Contracts (Rights of Third Parties) Act 1999 makes third parties, who have rights under a contract, subject to the jurisdiction clause in the underlying contract. He concluded that the third parties were bound by the jurisdiction clause.
Accordingly, the third party was bound by the exclusive jurisdiction clause and it was correct of the claimant to serve the claim outside the jurisdiction without the court's permission.
