Intention to defraud creditors proved

The claimant bank obtained judgment against a company and individual guarantors in Dubai and successfully defeated various appeals. The claimant then commenced proceedings in England seeking to overturn various transfers made by the individual guarantors in that jurisdiction.

The defendants unsuccessfully challenged the jurisdiction of the High Court and the judge went on to consider the transfers.

It was not disputed that the transfers were gifts, but the defendants, being the transferors and transferees, argued that the intention of the transfers was not to put assets beyond the reach of creditors, rather was, among other things, estate planning, unconnected with the judgment.

The judge, on the facts and the evidence, disagreed and made the order sought under section 423. The judge disagreed with the claimants’ submission that, if the transferor is insolvent at the time of the transfer and the result of the transfer is to deprive creditors of an asset, that that is sufficient to demonstrate intention and held that a positive intention must be established, but can be inferred.

On the facts and evidence, the judge did indeed infer that the dominant intention behind the transfers, made after judgment was entered in Dubai, was to put those assets beyond the reach of creditors.

This case is the latest line of authorities on the question of what constitutes sufficient intention to defraud creditors, which now seems to be the main stay of recovery proceedings, whether arising from individual or corporate insolvency processes, or not.

Emirates NBD Bank v Almakhawi and others [2023] EWHC 1113 (Ch)

Our content explained

Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

Mills & Reeve Sites navigation
A tabbed collection of Mills & Reeve sites.
My Mills & Reeve navigation
Subscribe to, or manage your My Mills & Reeve account.
My M&R


Register for My M&R to stay up-to-date with legal news and events, create brochures and bookmark pages.

Existing clients

Log in to your client extranet for free matter information, know-how and documents.


Mills & Reeve system for employees.