High Tech Construction Limited v WLP Trading and Marketing Limited [2025] EWHC 3209 (TCC)

[2025] EWHC 3209 (TCC)Case No HT-2025-000378
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 8 December 2025
Before
MR JUSTICE CONSTABLE
Between
HIGH TECH CONSTRUCTION LIMITEDClaimantWLP TRADING AND MARKETING LIMITEDDefendant
James Bowling (instructed by Fenwick Elliott LLP) for ClaimantsGaynor Chambers (instructed by Spencer West LLP) for DefendantsHearing Hearing date: 19 November 2025
JUDGMENTThis judgment was handed down by the Judge remotely by circulation to the parties'representatives by email and release to The National Archives. The date and time forhand-down is deemed to be 10:30am on 8 December 2025.

Introduction

[1]On 7 November 2025, Mr Alan Bates, sitting as a Deputy Judge of the High Court, made a freezing order (‘the Freezing Order’) in favour of the Claimant, High Tech Construction Limited (“HTC”), against the Defendant, WLP Trading & Marketing Limited (“WLP”). The order was sought to preserve WLP’s assets pending enforcement of an adjudicator’s decision in HTC’s favour, following a construction dispute relating to the development at 162 Willesden Lane, London NW6 7PQ (‘the Site’ or ‘the Property’ depending on context).[2]HTC seeks continuation of the Freezing Order until judgment or further order. WLP contends that the application ought not to have been made on a without notice basis, and that HTC failed to comply with its duty of full and frank disclosure. On the substance of the application, it contends that there is no real risk of dissipation of assets and the detrimental effects on WLP and/or inadequacy of HTC’s cross undertaking mean that the Court should refuse to renew and/or should discharge the Freezing Order. Alternatively, WLP seeks a variation limiting the extent of the Freezing Order.[3]HTC is a construction company, the sole director of which is a Mr Khalid Osman Khalif Al-Thafeiry (‘Mr Osman’). WLP is a company owned and controlled by a Dr Abbas Abboud Essa (‘Dr Essa’). Both Mr Osman and Dr Essa have provided witness statements, in the course of the underlying dispute which has been the subject of adjudication, and (in the case of Dr Essa), for the purposes of the application before the Court. The Court has also received two affidavits from Mr Andrew Davies of Fenwick Elliott solicitors acting for HTC, as well as an affidavit from Mr Osman and a witness statement from Mr Javen Sepulveda, a process server, again acting for HTC.

The Works

[4]WLP owns the Site. HTC says that in January 2023 it entered into a signed construction contract with WLP (“the Sub-Contract”)to carry out the groundworks, design and installation of the substructure works, including the concrete frame structure, lifts and stair cores, installation of precast stairs, drainage and other ancillary works for a 4-storey building comprising 22 flats at the site (“the Development”). The Sub-Contract Sum stated in the alleged Sub-Contract was £2,392,623.35 (excluding VAT).[5]HTC started the Sub-Contract Works in or around February 2023. HTC commenced with the reduced level dig and installation of a piling mat. Shortly thereafter the piling sub-contractor damaged the existing drainage system, forcing HTC to demobilise its workforce until further notice. HTC recommenced the Sub-Contract Works in November 2023 and progressed the Sub-Contract Works thereafter until it completed them and demobilised on 28 July 2024. A photograph taken at or around this time shows completion of the frame and cores. There did not appear to be, in the Adjudication referred to below, any question that (subject to defects) this work had not been undertaken by HTC. At the point of cessation of works by HTC, no further payments had been made beyond an initial £250,000. On Dr Essa’s evidence, the building is now ready for inhabitation, subject to some final fit out works to the various flats.[6]Mr Osman’s evidence is that by early 2025, HTC had still not received any update from Dr Essa about resumption of cashflow, but HTC could no longer absorb further non-payment. Between 28 and 30 January 2025, Mr Osman said that he saw that WLP was organising materials, such as windows and kitchen units, to be delivered to the Development. Mr Osman said that it did not make sense to him that, on the one hand, Dr Essa was saying he had no money to pay HTC for the work it had done, but on the other, he was buying materials to advance the Development towards a point where he could sell the flats.[7]Mr Osman’s evidence is that Dr Essa apologised for the delay and explained that he was having issues with HMRC and Brent Council and that his bank was not releasing funds. Mr Osman appended to his statement various text messages demonstrating, as Mr Bowling characterised accurately in his Skeleton Argument both on the without notice application and on the return date, that Dr Essa was making excuses and promising further payment, which promises he never came to fulfil. For example, on 13 February 2025, Mr Osman texts ‘Hello. How are you. What happened to payment? ….the situation is not bearable any more….Please let me know’. The response was, ‘Inshallah tomorrow’. The following month, with no payment forthcoming, Mr Osman texted, ‘Nothing arrived. What to do? Shall I keep calling you every one hour? I don’t have power and time.’ The response was ‘100 you will be told. The bank confirmed release yesterday’. In light of the second sentence, ‘told’ may be have been autocorrect for tmr or tomorrow or similar: either way Dr Essa’s message was a clear communication that payment would be made forthwith. The following month, Mr Osman texted, ‘What happened about payment?’ A week later Dr Essa wrote, ‘I’m really sorry for the delay in paying….’. Remaining messages appear to go unanswered.[8]An invoice was submitted by HTC for £1,450,000 on 21 July 2025 (Application for Payment No 2). On 8 August 2025, a construction and project management consultant, Mr Fyne, on behalf of WLP sent a letter to HTC alleging ‘our client has identified multiple defects and deviations from the approved design’ in respect of the lift shaft (‘unsuitable for its intended use’) and drainage (‘leading to poor flow, ponding…’). The letter alleged that WLP had incurred significant costs to date investigating and addressing the issues, including remedial works and extended preliminaries and site management costs. Each of the heads of loss were said to be ‘TBC’.[9]Application for Payment No 3 in the sum of £2,142,623.35 was issued on 29 August 2025 (AFP03). The sum was calculated by reference to the sum stated in the Sub-Contract alleged by HTC, less the £250,000 received. It effectively superseded the previous application.[10]Dr Essa responded on 1 September 2025 that the application, ‘purports to claim for works that are non-existent and have not been executed on site. The amount claimed is fabricated, wholly unsupported by evidence, and does not comply with any agreed requirement of the works. Such an application cannot give rise to any payment obligation’. He said that the defects had to be addressed before any application for payment could properly be considered.[11]The Development is now close to completion. Dr Essa contends that there are approximately 4 months’ work to go; a draft rental agreement provided suggests that some internal fit out and installation of white goods is anticipated.

The Adjudication

[12]In light of the foregoing, it is perhaps unsurprising that a dispute arose concerning HTC’s entitlement to payment in respect of its interim application for payment no.3 dated 29th August 2025 (“AFP3”). I set out the following in a little detail given the reliance placed upon Dr Essa’s conduct during the Adjudication (and a separate adjudication relating to another project) in support of the submission that there is a real risk of dissipation.[13]The Notice of Adjudication was dated 8 September 2025, and the Adjudicator, Mr Mathew Molloy, was appointed the following day. HTC was represented by Mr Fyfe, a construction management consultant; WLP by Dr Essa.[14]Dr Essa challenged jurisdiction on the basis that the Sub-Contract relied upon was not the genuine and binding agreement between the parties, and that it had been fabricated, altered or misrepresented in a manner which amounted to fraud. He submitted that therefore no lawful construction contract existed at all for the purposes of adjudication. Mr Molloy did not resign.[15]There were a number of somewhat tetchy exchanges between Mr Fyfe and Dr Abbas, copied to the Adjudicator, about a number of issues including the provision of some information sought by the Adjudicator on 22 September 2025. On 25 September 2025 at 08.10, Dr Essa said he would provide a full response ‘within 72 hours. Please note that while we normally respond promptly, on this occasion I am unwell and undergoing treatment’. At 01.45am 26 September 2025, Mr Fyfe emailed that, rather than being unwell and receiving treatment, ‘we have obtained photographic and video evidence from today of Dr Essa visiting site for most of the afternoon…We also have reliable information that Dr Essa was in his office this morning with an Engineer…’. Dr Essa responded, ‘I have been unwell and am undergoing treatment. That remains the case…. I did attend site briefly after 16.30 to deal with an urgent matter. My visit was short and limited strictly to addressing that emergency. This does not alter the fact of my illness or the explanation already provided.’ Ten minutes later, Mr Fyfe emailed noting that, ‘Dr [Essa’s] ability to write lengthy emails remains unaffected by his being ‘unwell and undergoing treatment’. Mr Molloy indicated that he did not require any further correspondence regarding conduct. Nonetheless, Dr Essa, three days later emailed regarding the ‘inappropriate tone’ stating ‘My earlier reference to being unwell related to a temporary medical matter which has no impact on my professional ability to respond when necessary’.[16]Some time later during the course of the Adjudication, Dr Essa asserted that Mr Fyfe had shadowed Mr Molloy on four live adjudications in January to June 2020, and had been a proposer of Mr Fyfe to the RICS panel. It was said this gave a real and obvious appearance of bias and that Mr Molloy should not continue to act. Mr Molloy rejected this jurisdictional challenge.[17]HTC’s case on contract formation was that, after negotiation and presentation of a tender in late 2022, the Sub-Contract was signed by Dr Essa for WLP and by Mr Osman on 26 January 2023 at a meeting at the Copthorne Tara Hotel, Kensington. HTC said that Dr Essa took the signed original contract away and said to Mr Osman that he would email him a copy. Dr Essa duly did so in June 2023.[18]Dr Essa disputed this version of events. In his evidence before the Adjudicator, Dr Essa accepted that he met Ms Osman, but said that the meeting related to a different contract. Dr Essa also accepted that he sent a copy of a contract to Mr Osman on 21 June 2023, but said that this was specifically prepared for Mr Osman to provide to the potential purchaser of the site and was not one signed by Mr Osman in January 2023. Dr Essa explained that it was he who inserted Mr Osman’s signature, as Mr Osman was ill and undergoing medical treatment in Russia at the time and asked to sign on his behalf. Dr Essa says that he agreed at the time to provide something to a third party with uplifted figures and used a “cut and paste” contract which he had used on a different matter. Dr Essa therefore denied that a binding contract was executed in January 2023 based on a JCT contract.[19]The Adjudicator considered that, notwithstanding that the circumstances surrounding the formation of the contract were unusual, there were a number of overriding factors which supported a finding that a contract was concluded on the terms claimed. The Adjudicator found that HTC was entitled to the balance of the contract sum as claimed in AFP3, namely £2,142,623.35. In respect of the allegations of defects, the Adjudicator concluded that there was no basis for a deduction from this sum, although he confirmed that he made no positive finding as to whether or not the alleged defects existed, just that there was no reason to reduce the value of the works claimed in AFP3 (‘the Decision’).[20]HTC has also been involved in a dispute relating to a wholly separate project, with another of Dr Essa’s company, Abbeywood90. The same Adjudicator was appointed. In this adjudication HTC relied upon an alleged technical obligation to pay on the basis of notification failures, rather than a ‘true value’ claim. Mr Molloy decided (on 14 November 2025) that HTC was not entitled to the sum of £1,194,787.97 claimed. During the course of the Adjudication, Abbeywood90 was required to serve a response by 29 October 2025, and in response to the Adjudicator’s email Dr Essa indicated that he was abroad, returning 26 October 2025, seeking an extension to 3 November 2025. Mr Osman alleged in his witness statement that Dr Essa was not away. On 23 October 2023 he wrote to Mr Fyfe to this effect at 09.08, saying, ‘He is not away. Please see attached photos of his car outside the site. The photos has been taken just now. I am trying to catch him when he comes out from site. But not sure how long. But 1000% he is inside the site’.

Compliance with the Freezing Order

[21]In its application to renew the Freezing Order, Mr Bowling argues that Dr Essa has failed to comply with the Freezing Order both in form (in that the required information was not provided within 48 hours of valid service of the Order at the registered address of WLP in accordance with CPR6.9) and substance (in that when information was provided, on 16 November 2025, it was inadequate). Ms Chambers argues on behalf of Dr Essa that service was not valid until effected personally, and the reason there may, on the face of it, appear to have been inadequacies in the information provided, is on account of the failure on the part of HTC’s solicitors to personally serve Dr Essa until Friday 14 November 2024. She submits that the allegation of temporal breach is misplaced in circumstances where initial information was provided within 48 hours of personal service, and there remained the ability for Dr Essa to make good inadequacies in the information provided in the Affidavit to be served within 5 days. As explained further below, a further affidavit (in draft) was provided after the hearing on 19 November 2025, and so it is said that there has been no technical nor substantive breach of the Freezing Order.[22]Paragraph 11 of the Freezing Order required WLP to inform the Applicant's legal representatives in writing within 48 hours of service of the Order and to the best of its ability of: (l) all its assets worldwide which exceed £10,000 (ten thousand pounds sterling) in value, whether they are in WLP's own name or not and whether solely or jointly owned, giving the value, location and details of all such assets; and (2) in relation to the Property:(a) the current market value of the Property;(b) details of whether and on what terms the Property is being marketed (including but not limited to any estate agents who are instructed and the terms of their appointment(s));(c) details of any solicitors appointed to handle the sale of the Property; and(d) details of any legal charges registered against the Property (giving the name of the persons in whose favour the charge was granted, the amount of the charge and terms, and where the charge in question was to secure lending, the terms of that loan, and what the proceeds of the loan were to be or are to be used for, and the current amount of indebtedness).[23]Paragraph 14 of the Freezing Order required WLP to confirm the information provided pursuant to paragraph 11 by way of affidavit, within 5 working days. The Order provided that if there had been any changes in the information between the date of the original disclosure and the date of the affidavit, these had to be identified in the affidavit.[24]The Freezing Order was left at the main reception desk for WLP’s registered office at 17.30pm on 7 November 2025. The covering letter stated that service on WLP’s registered office was good service. It also said that, notwithstanding good service, confirmation was sought as to when Dr Essa would make himself available to accept personal service.[25]Mr Bowling accepted that (contrary to the view taken in contemporaneous correspondence by Fenwick Elliott) this was insufficient to effect service, as it was after 4.30pm (see CPR 6.26). Deemed service would, he submitted, therefore be 10 November 2025. A process serving agent attended the registered office again on 10 November 2025, providing a further copy of the Freezing Order in the presence of someone who indicated that it would be forwarded immediately to Dr Essa. Personal service was also attempted on Dr Essa, unsuccessfully.[26]By an email dated 12 November 2025, Spencer West, solicitors for Dr Essa, sought clarification of the basis of service upon which HTC relied. Amongst other things, the letter characterised the assertion of good service having been effected coupled with a request for personal service as conflicting. Nevertheless, Spencer West stated that Dr Essa could accept service the following day at the registered office.[27]Fenwick Elliott’s response the same day restated the (incorrect) assertion that service had been effected on 7 November 2025, but reiterated that the Freezing Order was in any event served validly on 10 November 2025. They asserted that there was no need for personal service for the Freezing Order to be formally served pursuant to CPR 6.9. No attempt was, it seems, made to effect personal service on 13 November 2025 further to the invitation in Spencer West’s email.[28]By email on 14 November 2025, Spencer West responded, asserting that a Freezing Order had to be personally served on an officer or director of the limited company. The correctness of this assertion is considered below. There is no dispute that personal service was, in any event, achieved late afternoon of 14 November 2025. The evidence of Mr Sepulveda is that Dr Essa was dismissive and abusive when personal service was effected. According to the submissions of Ms Chambers, this evidence was not provided until the service of the bundle on Monday evening, in a very large single document with no indication of its contents. I accept that this evidence was not seen by Dr Essa and his legal team until some time on Tuesday morning. No doubt, Dr Essa’s team considered it more appropriate to focus on points of substance. In these circumstances and I do not read into the absence of any rebuttal evidence on this point as necessarily indicative of acceptance of its truth. That said, it might be thought surprising for an independent third party process server to have made it up. If his evidence is true, as to which it is not necessary for me to form a view, it plainly reflects very poorly on Dr Essa.[29]Ms Chambers submitted that time for compliance with the Freezing Order commenced upon personal service, on Friday 14November. Mr Bowling submitted that it commenced upon service pursuant to CPR6.9, on Monday 10 November. If Mr Bowling is correct, the submission of information on 16 November 2025 (irrespective of its substance) was late and in breach of the Freezing Order.[30]Ms Chambers relies upon Nicklin J’s judgment in MBR Acres Ltd v Maher [2023] QB 186.

The judge set out the issue considered in the case at [3]:

“The principal issue of contention between the parties is, after the introduction of the new CPR Part 81 in October 2020, whether (unless the Court permits alternative service or dispenses with service) an injunction order is required to be served personally on a defendant who is represented by solicitors before s/he can be found to be in contempt of court for alleged breach of the order or whether the effect of the CPR is to require that the injunction order be served on his/her solicitors.”
[31]After fulsome consideration of the authorities, Nicklin J concluded:
“… that personal service of an injunction order is still required by CPR 81.4(2)(c), unless the Court has permitted a different mode of service or has exceptionally dispensed with the need to serve the injunction order. As such, CPR 6.22(1) must be read as requiring personal service of an injunction order. Unless permitted by an alternative service order under CPR 6.15 and 6.27, service of an injunction order upon a legal representative who is on the record for a defendant is not good service. As a result, in this case, service of the Injunction on Cohen Cramer was not good service on Ms Laidlaw.”
[32]Nicklin J was considering whether changes introduced by Part 81 changed the general requirement that, in order for a party to be found in contempt of court, service of the order that person is said to have breached must have been personally served. It is instructive to consider the CPR as it was prior to the new regime introduced in 2020. As Nicklin J said at [64], the new Part 81’s ‘key omission’ was that it now contained no rule expressly governing service of an injunction order. The old Part 81 did contain such a rule (in CPR 81.6), which required personal service together with a rule permitting the Court, in an appropriate case, either to permit alternative service or to dispense with the requirement personally to serve the injunction order.[33]Nicklin J’s conclusion was that the requirement for an injunction order to be served personally remained a part of the CPR, through CPR 81.4(2)(c), which also reflected the substantive law of contempt. Importantly in the present context, Nicklin J said that personal service of an injunction order must be read into Part 6, which governs service generally, and specifically into CPR6.22(1), which states: ‘Where required by another Part, any other enactment, a practice direction or a court order, a document must be served personally’.[34]CPR6.22(2) deals with ‘other cases’ in which a document ‘may’ be served personally. The decision in MBR makes clear than an injunction order is covered by CPR6.22(1), not CPR6.22(2), along with other documents which are specifically required to be served personally. It follows that, in order for service of an injunction order to be valid, it must be served personally.[35]Mr Bowling submitted that it was necessary to demonstrate personal service solely for the purposes of bringing a contempt application. This, he said, did not mean that in circumstances where the beneficiary of the order did not seek to rely on the Order for the purposes of bringing a contempt application, it was permissible to serve the order validly by ‘ordinary’ service, pursuant to CPR6.9. This submission is difficult to reconcile with MBR, which makes clear that CPR81.4(2)(c) and/or the substantive law of contempt means that 6.22(1), a general provision relating to the service of documents required to be served personally, includes an injunction order. The enforceability status of an injunction order should not depend upon whether, at some point in the future, a party may or may not bring proceedings for breach by way of contempt proceedings. If not served personally, it is an Order of the Court which cannot be enforced. The face of the Order has a penal notice warning of potentially severe consequences for non-compliance. However, those words are writ in water unless and until personal service is effected. Quite simply, until personal service is effected, the recipient of the order generally may not be held to be in contempt of court and may not be fined or have their assets seized. If served pursuant to CPR 6.9, the document does not mean what it says. This is obviously unsatisfactory. To have a situation where the recipient of an Order containing a penal notice has some sort of obligation to comply with it but where, nevertheless, that obligation is incapable of enforcement by the Court is unnecessary, unhelpful and creates uncertainty.[36]It follows that Dr Essa was entitled to require personal service before being under an obligation to comply with the Freezing Order. However, in the circumstances of this case, the fact that, as I find on the evidence, Dr Essa was aware of the substance of the Order from, at least, 10 November 2025 may still be relevant when considering the extent to which Dr Essa was in substantive breach of the Freezing Order when providing the information he was required to provide on 16 November 2025; and if he was, why that was the case.[37]The information provided by Dr Essa in respect of paragraph 11(1) of the Freezing Order was that ‘The asset is a construction site at 162 Willesden Lane, London NW6 7PQ. Its value is around £12 million. It is owned by the Defendant company in this case’. The following further information was provided:(1) The Property is not being marketed; no solicitor had been appointed.(2) The legal charges are:a. Eurobank Limited £6,000,000. Registered Charge secured against the Property.b. Acton Lane London Limited £700,000. Registered legal chargec. Pak Chung Equipment Limited approx. £2,400,000. Unregistered but contractually obliged. Secured by executed loan agreement plus materials purchase and funds transferred directly to HTC’s UK account – exact final figures being verified.d. Everitt Road Properties Limited £250,000. Unregistered but contractually obliged. £250,000. Secured by executed loan agreement and corresponding remittances to HTC’s UK account.e. Cohort Capital. Registered charge. £700,000 secured by registered legal charge. Total £10,500,000.(3) ‘The loans were to be or are to be used for property projects and related costs. In relation to current indebtedness these are interest only loans, so the principal sums (debts) remain as originally provided by the lenders. The loan funds have been, and continue to be, applied toward all necessary components of acquiring, securing permissions for, and developing the property in question.[38]There followed a generic list of the sort of costs incurred in the development process, from property acquisition onwards.[39]Mr Bowling argued that this information was inadequate and in part contradictory. It seemed surprising that WLP did not, for example, identify any bank accounts used to receive and pay monies in relation to the day to day business of WLP. The information referred in two places to funds which ‘are to be used’ and ‘continue to be applied’, yet the information failed to disclose the amount and location of the remaining funds from the various loans to which reference is made. In particular, Mr Bowling submitted that WLP had, on its own account, just received £700,000 pursuant to a secured loan (considered further below), at a point at which the development was largely complete. Mr Bowling observed with justification that it was simply not clear what has happened to this money: if the money existed so it may ‘continue to be applied’, where was it? Given the existence of two registered charges in favour of Eurobank Cyprus Limited, it was also argued that it was likely that there would be other bank accounts associated with those facilities. Additionally, WLP’s assets may include materials, plant and equipment or furnishings/white goods which (according to a draft rental agreement, referred to further below) were shortly to be installed.[40]During submissions, the Court expressed the view that, at least on the face of it, the information provided and explanations appeared inadequate to fully comply with the Freezing Order.[41]Ms Chambers did not seek to argue that there were not, at least potentially, inadequacies in the information provided. She attributed this to the delay in effecting personal service and emphasised that the information had been made on a best endeavours basis.[42]This is not tenable. The order provided 48 hours for the provision of information. This sort of period is not unusual and the sole director of a company such as WLP ought to be able in that time to provide full and accurate information. I also have no doubt that Dr Essa knew very well from at least 10 November 2025 what (upon the successful effecting of personal service) would be required of him and WLP. The quality of the information provided was a reflection of the approach Dr Essa consciously chose to adopt, not the consequence of a lack of time. I also note that, whist it is right that the Claimant’s solicitors ought properly be criticised for failing to provide the note of thewithout notice application with the Freezing Order itself, or very shortly after, I reject as implausible Dr Essa’s statement in his later affidavit provided on 24 November 2025 that a reason for the timing of the provision of his own evidence is related in any way to that failure. His ability to provide the information clearly required of him is completely unrelated to what was or was not said at the without notice hearing.[43]Ms Chambers indicated that to the extent that there were inadequacies, it was permissible for these to be dealt with in the affidavit served 5 days after the initial provision of information. This fell to be Friday 21 November 2025 (i.e. two days after the hearing). In fact, by agreement, this was extended to 24 November 2025. An affidavit was provided. The parties were permitted to make short written submissions following the service of the affidavit.[44]In relation to bank accounts, Dr Essa stated that WLP had no UK bank account. He identified the existence of a Bank of Cyprus account, the balance of which was £695.71. This, it was submitted, explained why it was not disclosed on 16 November 2025: the balance was less than £10,000. General information was provided in respect of each of the loans, stating that, to the best of Dr Essa’s knowledge and belief loans were used for property development. In respect of the Cohort Capital loan, Dr Essa described as a bridging loan taken out pursuant to a loan agreement dated 9 October 2025, an amount of £663,594, however after advance deductions of interest and commission of brokers the amount received was under £600,000, rather than the £700,000 previously stated.[45]Ms Chambers submitted that by the initial information and the subsequent affidavit, the Freezing Order had been complied with. There was nothing in the information provided which supported any risk of dissipation.[46]Mr Bowling submitted that there remained real concerns about the adequacy of the information concerned, in particular, about the Cohort Capital loan. Dr Essa’s initial statement was that these funds, “were to be or are to be used for property projects … [they] have been, and continue to be applied towards … developing the property.” Dr Essa’s affidavit changed this account, saying that all of this money had been spent on, “suppliers and others relating to this construction site”.[47]Mr Bowling’s description of this as vague and contradictory is undoubtedly justified. First, the information initially provided about the £700,000 loan has changed in amount by a not insignificant sum, with no explanation. Second, if true, the whole sum has been spent in a matter of weeks with no explanation or detail as to where the money has gone. The single page bank statement provided for the Cyprus account is stated to be for the period during which the loan was drawn down (1-31 October 2025) but shows no money going into or out of the account. No documents have been provided demonstrating the payments supposedly made. The development is said to be some 4 months off completion according to Dr Essa, with further fit out works to be carried out and (apparently) no cash available notwithstanding the large, very recent drawdown. Dr Essa’s initial statement that the funds ‘are to be’ used was a clear statement that at least some of the sum drawn down remained a present asset, yet a few days later this assertion is reversed. There is no satisfactory explanation of the drawdown’s present – or indeed recent - existence or whereabouts. I consider it likely, given(1) the fact that the sum was not paid either into or out of WLP’s bank account;(2) Dr Essa’s change of position and(3) the surrounding absence of transparency, that the funds from this loan have been funnelled into and through another of Dr Essa’s companies’ accounts or potentially a personal account. In these circumstances, the inference that the recent drawdown against remaining equity has been used for purposes unrelated to WLP and/or the completion of the Property is a strong one.[48]I therefore do not consider that the information provided by Dr Essa in purported compliance with the Freezing Order has been either frank or complete.

The Relevant Test

[49]There is no dispute that the basic requirements for a Freezing Order in the present case are:(1) A good arguable case on the merits;(2) A real risk that a judgment to enforce the Adjudicator’s Decision will go unsatisfied by reason of WLP disposing of its assets unless an injunction is granted; and(3) It is just and convenient to grant the order.

Good Arguable Case

[50]WLP accepts that, albeit for the purposes of this application only, that HTC has a good arguable case in relation to its claim to enforce the Decision.

Risk of Dissipation of Assets

[51]The test is set out clearly, by reference to two other authorities, at paragraph [61] of Mex Group Worldwide Limited v Stewart Owen For & Ors [2024] EWCA Civ 959. It serves no purpose to seek to distil further or re-articulate that guidance so, for ease of reference, I set it out in full here:
“61. In order to obtain a freezing order a claimant must show that there is what is usually labelled a risk of dissipation. What this means was explained by Lord Justice Haddon-Cave in Lakatamia Shipping Co Ltd v Morimoto [2019] EWCA Civ 2203, [2020] 2 All ER (Comm) 359: ‘33. The basic legal principles for the grant of a WFO are well-known and uncontroversial and hardly need re-stating. It nevertheless is useful to remind oneself of the succinct summary of the test by Peter Gibson LJ in Thane Investments Ltd v Tomlinson (No 1) [2003] EWCA Civ 1272 at [21] where he stated that, before making a WFO, the court must be satisfied that: "… the applicant for the order has a good, arguable case, that there is a real risk that judgment would go unsatisfied by reason of the disposal by the defendant of his assets, unless he is restrained by the court from disposing of them, and that it would be just and convenient in all the circumstances to grant the freezing order." ‘33. The basic legal principles for the grant of a WFO are well-known and uncontroversial and hardly need re-stating. It nevertheless is useful to remind oneself of the succinct summary of the test by Peter Gibson LJ in Thane Investments Ltd v Tomlinson (No 1) [2003] EWCA Civ 1272 at [21] where he stated that, before making a WFO, the court must be satisfied that: "… the applicant for the order has a good, arguable case, that there is a real risk that judgment would go unsatisfied by reason of the disposal by the defendant of his assets, unless he is restrained by the court from disposing of them, and that it would be just and convenient in all the circumstances to grant the freezing order." 34. I also gratefully adopt (as the Judge did) the useful summary of some of the key principles applicable to the question of risk of dissipation by Mr Justice Popplewell (as he then was) in Fundo Soberano de Angola v dos Santos [2018] EWHC 2199 (Comm) (subject to one correction which I note below): (1) The claimant must show a real risk, judged objectively, that a future judgment would not be met because of an unjustified dissipation of assets. In this context dissipation means putting the assets out of reach of a judgment whether by concealment or transfer. (2) The risk of dissipation must be established by solid evidence; mere inference or generalised assertion is not sufficient. (3) The risk of dissipation must be established separately against each respondent. (4) It is not enough to establish a sufficient risk of dissipation merely to establish a good arguable case that the defendant has been guilty of dishonesty; it is necessary to scrutinise the evidence to see whether the dishonesty in question points to the conclusion that assets [may be][*] dissipated. It is also necessary to take account of whether there appear at the interlocutory stage to be properly arguable answers to the allegations of dishonesty. (5) The respondent's former use of offshore structures is relevant but does not itself equate to a risk of dissipation. Businesses and individuals often use offshore structures as part of the normal and legitimate way in which they deal with their assets. Such legitimate reasons may properly include tax planning, privacy and the use of limited liability structures. (6) What must be threatened is unjustified dissipation. The purpose of a WFO is not to provide the claimant with security; it is to restrain a defendant from evading justice by disposing of, or concealing, assets otherwise than in the normal course of business in a way which will have the effect of making it judgment proof. A WFO is not intended to stop a corporate defendant from dealing with its assets in the normal course of its business. Similarly, it is not intended to constrain an individual defendant from conducting his personal affairs in the way he has always conducted them, providing of course that such conduct is legitimate. If the defendant is not threatening to change the existing way of handling their assets, it will not be sufficient to show that such continued conduct would prejudice the claimant's ability to enforce a judgment. That would be contrary to the purpose of the WFO jurisdiction because it would require defendants to change their legitimate behaviour in order to provide preferential security for the claim which the claimant would not otherwise enjoy. (7) Each case is fact specific and relevant factors must be looked at cumulatively. ([*] Note: I have replaced the words "are likely to be" in sub-paragraph (4) with "may be").’ 62. Lord Justice Haddon-Cave added that: ‘51. … (1) Where the court accepts that there is a good arguable case that a respondent engaged in wrongdoing against the applicant relevant to the issue of dissipation, that holding up will point powerfully in favour of a risk of dissipation. (2) In such circumstances, it may not be necessary to adduce any significant further evidence in support of a real risk of dissipation; but each case will depend upon its own particular facts and evidence.”
[52]In terms of those matters which may constitute ‘solid evidence’, Mr Bowling also relied upon two passages of Gee on Commercial Injunctions (7th Edition). At section 12-34, the authors indicate:
‘The fact that the claimant has a claim which is unanswerable or virtually incapable of being defended may be a powerful factor in favour of granting the Mareva injunction, though it cannot be decisive in itself. But the court may infer the necessary risk of the judgment going unsatisfied from the behaviour of the defendant if he kept promising to honour a bill of exchange but persistently defaulted with implausible excuses, or if the defendant, after a lengthy silence, or after admitting liability, raised extremely thin defences once the matter became the subject of litigation, or if the claim is based on dishonesty of a nature which is relevant to risk of dissipation.’
[53]The thrust of this passage (in an earlier edition) was approved by Haddon-Cave J as he then was in AH Balwin & Sons Ltd v Sheikj Saud Bin Mohammed Bin Ali Al-Thani [2012] EWHC 3156 (QB).[54]At section 12-41, the editors note that each case turns on its own facts and that the court looks at the totality of the evidence, but they identify a number of relevant factors. Of potential relevance in the present case is consideration of the nature of assets which are to be the subject of the proposed injunction, and the ease or difficulty with which they could be disposed of or dissipated. Additionally, the conduct of the defendant in respect of the claims including:
‘a pattern of evasiveness, or unwillingness to participate in the litigation or arbitration, or raising thin defences after admitting liability, or total silence, or promises to pay and persistent defaults with implausible excuses, or running up liabilities and not paying them, or incurring liabilities beyond his means, or transferring assets or engaging in other conduct which may prevent enforcement. An offer of an undertaking may indicate absence of risk. Failure to give proper disclosure of assets under a court order is indicative of risk.’
[55]The principal matters upon which HTC relied in oral argument were:(1) Dr Essa’s dishonesty and/or his conduct in relation to the underlying claim;(2) WLP’s conduct in the Adjudication, including dishonesty, and the prospect of avoiding enforcement;(3) the formation of a further company after the dispute arose, Cavendish & Rowe Holding Limited, bearing a name which suggests an association with the site, raising the prospect that Dr Essa will file a TR1 with the Land Registry transferring title in the Site to a separate entity;(4) a recent charge on the Development to Cohort Capital Limited, coinciding with the Adjudication proceedings, and the drawdown of £700,000 for unexplained or inadequately explained purposes;(5) evidence that Dr Essa is attempting to sell the Development;(6) the factors are combined with evidence that Dr Essa has ties with countries and institutions outside the jurisdiction, including banking arrangements in Cyprus.(7) Dr Essa’s non-compliance with the Freezing Order with respect to the provision of information.[56]I consider these in turn.

Underlying claim

[57]On the evidence outlined in Section B above, I accept Mr Bowling’s characterisation of Dr Essa’s conduct during 2024 into 2025 as including promises to pay and persistent defaults with implausible excuses, raising thin defences after admitting liability, and periods of total silence. Setting aside the dispute about the form of contract, it is implausible given the undisputed fact of very significant work having been undertaken pursuant to an agreed specification that there was not a contract between the parties of some sort: taking WLP’s case at face value, it may be a contract to pay a reasonable sum. The manner and timing of WLP raising the issue of defects does not lend them credibility. The suggestion that the existence of defects may present a valid reason to withhold any, or any significant, sum is substantially undermined by(1) the absence of any proper particularisation of the defects themselves;(2) the absence of any particularisation of the losses, which are said to be incurred losses and therefore would be capable of evidence;(3) the absence of any independent report – even now, months after the issue was first raised – supporting the assertion;(4) WLP’s own case that the building is fit to be rented to third parties, subject only further fit out works. At least on the evidence before me, ‘thin’ somewhat overstates the nature of the defence to payment, insofar as it rests on the contention that there exists or existed significant defects in HTC’s work. Absent defects, no other substantive defence has been raised at all. No attempt has been made (for example) to identify (let alone pay) that sum which WLP accept is due for carrying out the very considerable demolition, structural and core works through to July 2024, even if the contract was a simple one for the payment of a reasonable sum.[58]Assuming no proper defence, Mr Osman was justified in noting the contradiction between Dr Essa’s pleas of impecuniosity due to supposed (but wholly unevidenced) issues with the council and/or his bank whilst at the same time having considerable further cash available to pay for the remainder of the construction works to take the Development to its near complete condition. One might speculate that this apparent contradiction would have an answer if Dr Essa was also not paying all his other contractors; but if that is the answer, it raises the question as to what has happened to the £10.5m leveraged on the Property.[59]Whilst plainly not determinative, I regard the manner in which HTC have been treated and, at least on the evidence before me, the virtually unanswerable entitlement to very significant further payment (quite irrespective of the contract formation point taken during the Adjudication) as powerful factors in HTC’s favour.

WLP’s conduct in the Adjudication, including dishonesty, and the prospect of avoiding enforcement

[60]Contrary to the emphasis placed on it by Mr Bowling, I do not regard the spat which played out before Mr Molloy as to Dr Essa’s health as clearly demonstrating dishonesty. Mr Molloy (rightly) indicated he was not assisted by each side’s communications about the other’s conduct. Similarly, I draw no conclusions about Dr Essa’s honesty, or otherwise, from a photograph of his car at site when he was said to be abroad.[61]However, whilst the following observation in no way prejudges the outcome of the impending enforcement proceedings in circumstances where I have not heard detailed arguments on the points, a combination of(1) the generally very low statistical prospects of defeating an enforcement claim and(2) the (at least superficial) similarity of the jurisdictional arguments which seem the likely candidates for disputing enforcement to those which have not found success before the Courts in the past, lead to the conclusion that it would be surprising if Dr Essa did not consider that there was, at least, a very significant risk that WLP will be facing an enforceable judgment for over £2m early in the New Year.[62]This is also a factor which weighs in HTC’s favour. The formation of a further company after the dispute arose, Cavendish & Rowe Holding Limited, bearing a name which suggests an association with the site.[63]HTC points to the formation of a further company, in April 2025, after the dispute arose, called Cavendish & Rowe Holding Limited. (‘CRHL’). The ‘Cavendish’ element of the name is said to suggest an association with the Site, in that the Property is on the corner of Willesden and Cavendish Roads. Mr Bowling does not put this higher than it being ‘one piece of evidence’ which leads to the reasonable fear that WLP will dissipate its assets. Mr Bowling was right not to put this evidence too high; on its own it would fall far short of solid evidence of a risk of dissipation.[64]However, when seeking to explain the existence of the new company, Dr Essa says only that it was incorporated for administrative and property management purposes only. Dr Essa’s evidence that, as things stand, no assets have ever been transferred from WLP to CHRL, may be correct; yet his explanation does not deny the potential import of the link between the name of the company and the Property, and is vague in describing what the company is for. Of greater significance is Dr Essa’s provision of a Heads of Terms of a rental agreement which is relied upon to disprove the fear that Dr Essa intends to sell the Property. The Landlord is stated to be ‘TBC’ i.e. to be confirmed. This is clear evidence that Dr Essa, effectively the controlling mind of both WLP and CRHL, is as yet undecided as to which of his companies is to be the Landlord of the Property for the purposes of the intended lease. Whilst it is right that this evidence therefore contradicts, at least on its face, any intention to sell the Property to an ‘arm’s length’ third party, it heightens the risk, in my judgment to a real one, that Dr Essa has in mind that CRHL is to be the Landlord of the Property (or, if not CRHL, another of his companies). This could be achieved by Headlease arrangements between WLP and CRHL; but it is also entirely consistent with the transfer of ownership of the Property. That WLP plainly is not stated to be the Landlord deserves, at the very least, a proper explanation. Dr Essa does not provide one.[65]This factor weighs in HTC’s favour. A recent charge on the Development to Cohort Capital Limited, coinciding with the adjudication proceedings, and the drawdown of £700,000 for unexplained or inadequately explained purposes[66]As already considered, there is no dispute that Dr Essa has very recently, on 29 October 2025, encumbered Property with a new charge, to Cohort Capital Limited, for the purposes of withdrawing further equity. I have dealt with the unsatisfactory nature of the information provided as to the use of and/or remaining existence or whereabouts of this loan.[67]Additionally, it is of note that the Charge itself is a deed between WLP and a Security Agent. It is not with the provider of the loan facility. The Facility Agreement itself has not been disclosed. This means therefore that there is no transparency as to whether, for example, the £600,000 itself is the extent of the available loan or whether there is potential for further significant drawdowns under the Facility Agreement so as to eat into the remaining equity. No information or explanation has been provided in relation to this.[68]If there is further ‘headroom’ in the Facility Agreement, there exists an ability to convert further, potentially substantial, equity (from the principal asset of WLP) readily into cash. This goes to the ease with which the value of the otherwise less immediately realisable asset of the Property may be realised by WLP. The existence of this charge, the lack of transparency as to the Facility Agreement to which it relates, the lack of any detailed explanation as the expenditure, or whereabouts of, the loan already drawn down and the timing of the charge coincidental with the Adjudication are all factors which point to a real risk of dissipation.

Evidence that Dr Essa is attempting to sell the Development

[69]The evidence that Dr Essa is presently and actively attempting to sell the Property to a non-arms length third party is limited to(1) Mr Osman’s wife having walked past the development and taking photographs of two men who did not appear to be construction workers and(2) an unidentified tenant having allegedly told Mr Osman that they had been told by Dr Essa that he was planning to sell the Development.[70]At least standing alone, this is extremely speculative in nature. I do not go behind Dr Essa’s statement that, in fact, the man in a suit was a surveyor; and that he would not have spoken to a tenant about his plans to sell the Property. I do note, however, that Dr Essa, when stating that he has no intention to sell the Property, uses the word ‘currently’.[71]The Heads of Terms referred to above assist Dr Essa in dispelling the speculation that he (currently) intends to sell the Property to a third party, although for the reasons already given, they raise a more difficult question in terms of its potential transfer to one of his own companies.[72]I accept that, at least in the timeline to judgment on the impending adjudication enforcement, the likelihood of WLP being able to effect a transaction to a third party given the charges on the Property would be slim. I accept that a transfer from one of Dr Essa’s companies to another would be more straightforward.[73]I do not consider that there is either an intention to, or a realistic likelihood, of WLP selling the Property to a third party in the short term. This is therefore not a factor that I consider supports the risk of dissipation. The above factors are combined with evidence that Dr Essa has ties with countries and institutions outside the jurisdiction, including banking arrangements in Cyprus.[74]There is an issue about the description of Dr Essa’s residency in the context of the alleged failure to have provided full and frank information.[75]The wider international links, including banking facilities in Cyprus, is not denied by Dr Essa. This factor weighs in favour of HTC, as evidence of the ease with which, should WLP realise further funds from the asset, it would easily and swiftly be able to place them beyond the jurisdiction.

Non-compliance with the Freezing Order

[76]I have found that WLP, through Dr Essa, has not complied satisfactorily with the Information Requirements of the Freezing Order. This is a factor that weighs in favour of a real risk of dissipation. Conclusion[77]Looking at all the circumstances in the round, which includes not just the material placed before the Deputy High Court Judge, but the quality of information and explanations since, including Dr Essa’s non-compliance with the Freezing Order, I consider that HTC has established that there exists a real risk of dissipation.

Balance of Convenience

[78]Dr Essa’s evidence was that the continuation of the Freezing Order would “cause material and disproportionate disruption to my company’s legitimate business operation, including lender relations, construction schedules and contractual obligations. Further it affects my commercial reputation as well, particularly with lenders/banks”. It was said, in addition, that the inability to access funds would mean that the Development cannot be completed. There is no obvious reason, however, why this would be the case. Completing the Development, or indeed selling it, would fall within legitimate business use.[79]Ms Chambers raised the point that, given the object of WLP as a development company rather than a professional landlord, incurring funds so as to complete any potential lease on the terms set out in the Heads of Terms or marketing the building to others for rental might breach the Freezing Injunction. It is doubtful that it would be, but in any event, any renewed Order should be worded in such a way so as to allow such activity, which would plainly be in both sides’ interests and would be a legitimate business activity.[80]Ms Chambers accepted that the only remaining risk of damage to WLP relied upon is that of reputational harm in being subjected to a Freezing Order. Notwithstanding that the cross undertaking in damages is underpinned by a present cash balance of (only) £233,483, I do not consider that a reputational risk is sufficient of itself, when considering the balance of convenience, to outweigh the importance of preserving the Freezing Order, in light of my findings as to the real risk of dissipation.

Full and Frank Disclosure

[81]The principles in relation to full and frank disclosure in freezing injunctions were summarised by Carr J (as she then was) in Tugushev v Orlov[2019] EWHC 2031 (Comm), and were endorsed in the Court of Appeal in Mex Groupat paragraph [119] and following of Coulson LJ’s judgment.[82]As was stated at paragraph [121]:
“In essence, if a subsequent court considers that an ex parte order has or may have been made in circumstances where important information should have been but was not disclosed to the judge, it may well set the order aside, but the failures must be material, and any assessment of the alleged failures must be proportionate. Ultimately, in considering whether to discharge the order and/or to renew it, the court will always be guided by the interests of justice.”
[83]Ms Chambers argued that there was not full and frank disclosure. I consider each point she made in turn below.[84]First, it is said that the situation regarding timing and urgency was not as presented, and the application ought not to have been brought on a without notice basis. In circumstances where I have concluded that the fear of dissipation is real, this is not a valid criticism. One of the most compelling aspects giving rise to that fear is the very recent withdrawal of significant further sums newly charged against the Property. The risk of further equity in the Property being converted into a readily moveable liquid asset of itself justified the without notice approach.[85]Second, Ms Chambers submitted that Dr Essa’s status as resident in China was not a fair presentation by Mr Osman in his witness statement. Pointing to the note of the hearing, Ms Chambers identified that the Judge stated in his reasons that Dr Essa appears to have a wide range of business interests around the world and is resident in China with rights to reside in various other jurisdictions. I agree that the statement that Dr Essa is resident in China is an over simplification. The bundle before the Court on the without notice application contained information for various of Dr Essa’s companies from Companies House. A number of these do describe Dr Essa’s Country of Residence as ‘China’. This includes WLP, and other companies formed as recently as 2023. WLP also is stated to have a correspondence address in China. However, the statement made by Mr Osman does not take account of the fact that the registration of CRHL, incorporated in 2025, has country of residence as England, with a correspondence address in London.[86]Mr Bowling fairly accepts that it should not have been said, without more, that Dr Essa was resident in China. I consider below the implications of this.[87]Third, Ms Chambers argues that HTC sought to persuade the Court that there was a “genuine fear based on evidence that WLP is currently attempting to divest itself of the development” but failed to bring to the Court’s attention expressly that the only matters relied upon was the limited evidence I have already described above. This is not a good argument. The witness statement makes clear on its face the limit of the evidence relied upon. The skeleton argument cross refers to the evidence. Whether one regards the evidence as ‘good’ or ‘limited’ is a matter of submission; but the actual evidence relied upon was fully disclosed and its content fairly described to the judge.[88]Fourth, it is said that the position in relation to defects was not addressed fairly. Ms Chambers states that Mr Osman stated that there were no or no substantial defects without acknowledging or referring to his ‘concession’ that a subcontractor damaged the drainage system (although the Court understands there maybe a dispute as to who was responsible for the subcontractor). It is also argued that Mr Osman stated that the Adjudication Decision was an “interim binding decision that there were no such defects” whenin fact, the Adjudicator made no positive finding as to whether or not the defects existed.[89]In fact Mr Osman said, ‘Further, given the Adjudicator dealt with our claim on a “true value” basis, he has given an interim binding decision that there are no such defects (or, perhaps more strictly, there is to be no deduction from the value of our account for any such defects). If Dr Essa was present on this application, proof of any such defects would therefore not be a defence to payment of the debts currently owed.’[90]This was accurate. The fact of a subcontractor’s damage earlier in the project was also set out his statement, and that fact is not inconsistent with the way Mr Osman described the Adjudicator’s finding. There was no failure in this regard.[91]Finally, Ms Chambers submitted that serious allegations of dishonesty were made within HTC’s Note at paragraph 42(1) when these were not backed up by cogent evidence, the precise nature of which (or lack thereof) was again not brought specifically to the Court’s attention. Paragraph 42(1) stated:
“WLP’s conduct in raising obviously unmeritorious defences in the Adjudication and repeatedly requesting stays or extensions of time to spin things out, including being evasive or dishonest about Dr Essa’s availability by claiming that he was ill and undergoing treatment when it turns out he was in fact on site, whilst also refusing to enter any meaningful defence on the merits obviously suggests strongly that WLP is perfectly well aware that it owes HTC very significant sums, in relation to which it will do everything it can to avoid paying.”
[92]As I have found, I do consider that the underlying evidence suggests that it is likely that WLP is aware that it owes HTC very significant sums, and that this is a factor weighing in HTC’s favour in respect of establishing a real risk of dissipation. That I have not accepted the characterisation of the exchanges about Dr Essa’s health as necessarily dishonest does not detract from that. I have no doubt that HTC believes that Dr Essa was not being honest. The underlying exchanges upon which HTC relied was clearly provided to the Judge, and it was open to the judge to form his own view - indeed, there is no indication that the judge did accept or rely upon the characterisation of the exchange about Dr Essa’s availability as ‘dishonest’. My non-acceptance of the characterisation of one part of HTC’s submission does not mean that the information taken as a whole was not full and frank.[93]It follows that the only aspect in respect of which there can be any valid criticism of the presentation of evidence is the description of Dr Essa’s country of residence as ‘China’. In circumstances where the documentation (which was provided) points in different directions, this was over-simplistic. However, looking at the evidence as a whole, I do not consider that this isolated point was material or that this point alone requires that, in the interests of justice, it is appropriate to discharge and/or not renew the Freezing Order.

Conclusion

[94]For the reasons given, the Freezing Order is to be renewed. The Defendant’s submission that it should not be renewed is dismissed. The parties are to revert to the Court with the wording, ideally agreed, to reflect the point made at paragraph 79 above and such other matters required to be dealt with consequent upon this judgment.

Cited in 1 later judgment