FIRST OF ITS KIND ANTI-SUIT INJUNCTION MADE WHERE PROCEEDING

Companion in Rosling King’s Dispute Decision Group, Hannah Sharp represented the profitable Claimant which obtained a novel anti-suit injunction in assist of an professional witness sued by the Defendants in his dwelling jurisdiction.

This injunction required the withdrawal of the abusive declare made towards the professional witness within the Ukrainian courtroom. The case emphasises the Excessive Court docket’s readiness to train its discretion to grant anti-suit injunctions to guard the integrity of the English Court docket and its personal processes, even the place the case regulation is undeveloped.

Case Abstract

On 2 August 2023, the Excessive Court docket handed down one other judgment on this lengthy working and hard-fought authorized dispute, this time granting an anti-suit injunction towards the First and Second Defendants, Mr and Mrs Tyshchenko, requiring them to withdraw a declare in Ukraine towards the Ukrainian regulation professional for the Claimant, WWRT Restricted. In exercising this discretionary energy underneath s 37(1) of the Senior Courts Act 1981, Mrs Justice Bacon famous in her judgment that there’s “no case the place an anti-suit injunction has been sought on info comparable to the current”.

Background
The context of the latest judgment is a declare introduced by WWRT in relation to loans made by the now defunct Ukrainian financial institution, JSC Fortuna Financial institution, which WWRT asserts have been granted to debtors related to Mr and Mrs Tyshchenko who had no intention or technique of repaying them. The proceedings have been ongoing since September 2020, when Kelyn Bacon QC (as she then was) issued a £65 million with out discover freezing injunction towards Mr and Mrs Tyshchenko. WWRT’s utility for a freezing order was supported by a report from WWRT’s Ukrainian regulation professional, who has since offered additional professional proof on behalf of WWRT.

In October 2022, Mr Tyshchenko issued a declare in Ukraine towards WWRT’s professional, with Mrs Tyshchenko listed as a 3rd occasion to it. By the declare, they sought an order recognising the conclusions of the professional in sure of his experiences within the English proceedings as illegal and requiring that he recant the proof offered in these experiences. The professional’s utility for closure of the declare towards him was rejected in fast succession by the Business Court docket of Kyiv and North Business Court docket of Enchantment. His enchantment to the Ukrainian Supreme Court docket was listed for listening to on 15 August 2023.

In late July 2023, WWRT made an pressing utility for an anti-suit injunction requiring the declare towards the professional to be withdrawn on the premise that it’s vexatious, abusive and an illegitimate interference within the apply and process of the English Court docket.

Authorized Take a look at

The Court docket’s energy to grant an anti-suit injunction is derived from s. 37(1) of the Senior Courts Act 1981, which gives that the Court docket might grant interim or remaining injunctions the place “it seems to the courtroom to be simply and handy to take action”. This energy extends to the granting of anti-suit injunctions the place the continuation of proceedings in a overseas jurisdiction is “unconscionable”: South Carolina Insurance coverage v Assurantie Maatshappij [1987] 1 AC 24. A principal instance of that is the place the overseas proceedings are considered “vexatious or oppressive”.

The Resolution

On this newest improvement, Mrs Justice Bacon granted the primary of its type anti-suit injunction towards Mr and Mrs Tyshchenko, requiring the withdrawal of the Ukrainian declare towards the professional, on the premise that it was very clearly each vexatious and oppressive. In making her determination, Mrs Justice Bacon identified the probably cause for the dearth of authority on this space is that it’s “extraordinarily uncommon for a celebration to proceedings to launch such a direct and unambiguous assault in a overseas courtroom on the substance of the proof given in home proceedings”.

Though comparisons have been made to Arab Financial Fund v Hashim (No. 6), Monetary Instances Legislation Experiences, 23 July 1992, the place an order for an anti-suit injunction was not granted as a result of (amongst different issues) there was nothing to counsel that the US motion had been commenced to dissuade the witness from giving proof within the UK, within the current case Mrs Justice Bacon was assured that the declare was introduced by Mr Tyshchenko in a “blatant and clearly abusive try and intervene with the due strategy of the English proceedings which have by now been on foot for nearly three years”.

Commentary
While the info of this case are extremely uncommon, the choice demonstrates that the Excessive Court docket stands able to train its discretion to grant anti-suit injunctions to guard the integrity of the English Court docket and its personal processes, even the place the case regulation is undeveloped. The Choose on this case recognised the broader implications of the choice and the necessity to ship “a powerful sign to different litigants that this form of conduct won’t be tolerated”.

For additional data, please contact associate Hannah Sharp at Rosling King LLP on hannah.sharp@rkllp.com or 0207 246 8000.

Hannah Sharp is a associate in Rosling King’s Dispute Decision Group specialising in monetary companies disputes, fraud and business litigation, each home and cross-border. Hannah has vital expertise of performing for banks (funding and retail) and different monetary establishments, corporates and extremely excessive internet price people on a broad vary of complicated disputes.

Rosling King LLP is a London-based regulation agency specialising in serving the wants of monetary establishments, corporates and people. For extra data please go to www.rkllp.com.