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Companion in Rosling King’s Dispute Decision Group, Hannah Sharp represented the profitable Claimant which obtained a novel anti-suit injunction in help of an knowledgeable witness sued by the Defendants in his residence jurisdiction.
This injunction required the withdrawal of the abusive declare made in opposition to the knowledgeable witness within the Ukrainian courtroom. The case emphasises the Excessive Courtroom’s readiness to train its discretion to grant anti-suit injunctions to guard the integrity of the English Courtroom and its personal processes, even the place the case legislation is undeveloped.
Case Abstract
On 2 August 2023, the Excessive Courtroom handed down one other judgment on this lengthy working and hard-fought authorized dispute, this time granting an anti-suit injunction in opposition to the First and Second Defendants, Mr and Mrs Tyshchenko, requiring them to withdraw a declare in Ukraine in opposition to the Ukrainian legislation knowledgeable for the Claimant, WWRT Restricted. In exercising this discretionary energy below 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 information 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 in opposition to Mr and Mrs Tyshchenko. WWRT’s utility for a freezing order was supported by a report from WWRT’s Ukrainian legislation knowledgeable, who has since offered additional knowledgeable proof on behalf of WWRT.
In October 2022, Mr Tyshchenko issued a declare in Ukraine in opposition to WWRT’s knowledgeable, with Mrs Tyshchenko listed as a 3rd celebration to it. By the declare, they sought an order recognising the conclusions of the knowledgeable in sure of his reviews within the English proceedings as illegal and requiring that he recant the proof offered in these reviews. The knowledgeable’s utility for closure of the declare in opposition to him was rejected in speedy succession by the Industrial Courtroom of Kyiv and North Industrial Courtroom of Enchantment. His enchantment to the Ukrainian Supreme Courtroom 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 in opposition to the knowledgeable to be withdrawn on the idea that it’s vexatious, abusive and an illegitimate interference within the observe and process of the English Courtroom.
Authorized Take a look at
The Courtroom’s energy to grant an anti-suit injunction is derived from s. 37(1) of the Senior Courts Act 1981, which supplies that the Courtroom might grant interim or ultimate 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 international jurisdiction is “unconscionable”: South Carolina Insurance coverage v Assurantie Maatshappij [1987] 1 AC 24. A principal instance of that is the place the international proceedings are considered “vexatious or oppressive”.
The Determination
On this newest growth, Mrs Justice Bacon granted the primary of its type anti-suit injunction in opposition to Mr and Mrs Tyshchenko, requiring the withdrawal of the Ukrainian declare in opposition to the knowledgeable, on the idea that it was very clearly each vexatious and oppressive. In making her determination, Mrs Justice Bacon identified the doubtless motive 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 international 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 Stories, 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 recommend 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 information of this case are extremely uncommon, the choice demonstrates that the Excessive Courtroom stands able to train its discretion to grant anti-suit injunctions to guard the integrity of the English Courtroom and its personal processes, even the place the case legislation is undeveloped. The Decide 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 is not going to be tolerated”.
For additional info, please contact accomplice Hannah Sharp at Rosling King LLP on hannah.sharp@rkllp.com or 0207 246 8000.
Hannah Sharp is a accomplice in Rosling King’s Dispute Decision Group specialising in monetary companies disputes, fraud and industrial litigation, each home and cross-border. Hannah has vital expertise of appearing for banks (funding and retail) and different monetary establishments, corporates and extremely excessive web value people on a broad vary of complicated disputes.
Rosling King LLP is a London-based legislation agency specialising in serving the wants of economic establishments, corporates and people. For extra info please go to www.rkllp.com.
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