Representing the successful Claimant in Rosling King's Dispute Resolution Group, Hannah Sharp secured a unique anti-suit injunction in support of an expert witness who was being sued by the Defendants in his home jurisdiction.
This injunction demanded the withdrawal of the baseless claim filed against the expert witness in a Ukrainian court. This case serves as a testament to the High Court's willingness to use its discretion in granting anti-suit injunctions to safeguard the integrity of the English Court and its processes, even in situations where relevant case law is scarce.
Case Overview
The recent ruling on 2 August 2023 by the High Court saw an anti-suit injunction granted against the First and Second Defendants, Mr and Mrs Tyshchenko, instructing them to retract a claim in Ukraine against the Ukrainian law expert working for the Claimant, WWRT Limited. By exercising the discretionary powers outlined in s 37(1) of the Senior Courts Act 1981, Mrs Justice Bacon highlighted in her judgment that there is no precedent for an anti-suit injunction in circumstances similar to the current case.
Background The legal dispute in question revolves around loans issued by the now-defunct Ukrainian bank, JSC Fortuna Bank, which WWRT contends were given to borrowers linked to Mr and Mrs Tyshchenko who had no intention or means to repay them.
The dispute dates back to September 2020 when Kelyn Bacon QC imposed a £65 million without-notice freezing injunction against Mr and Mrs Tyshchenko. WWRT's application for this freezing order was supported by insights from their Ukrainian law expert, who has since provided further expert opinions on behalf of WWRT.
In October 2022, Mr Tyshchenko filed a lawsuit in Ukraine against WWRT's expert, with Mrs Tyshchenko also involved.Through this claim, they aimed to challenge the conclusions of the expert's reports in the English proceedings and demanded that he retract the evidence provided. Despite the expert's attempts to close the case against him, the Ukrainian courts rejected his applications, leading to an appeal to the Ukrainian Supreme Court scheduled for 15 August 2023.
In late July 2023, WWRT sought an urgent anti-suit injunction to compel the withdrawal of the claim against the expert, citing it as vexatious, abusive, and an unwarranted interference in the English Court's proceedings.
Legal Consideration
The authority to grant an anti-suit injunction stems from s. 37(1) of the Senior Courts Act 1981, which enables the Court to issue interim or final injunctions when deemed just and convenient. This power can be utilized to stop proceedings in a foreign jurisdiction if they are deemed "unconscionable," especially if they are seen as "vexatious or oppressive." This was the basis for granting the injunction in this case.
The Ruling
In a groundbreaking move, Mrs Justice Bacon granted an unprecedented anti-suit injunction against Mr and Mrs Tyshchenko, demanding the withdrawal of the Ukrainian claim against the expert on the grounds of being vexatious and oppressive. Mrs Justice Bacon noted the lack of precedent in this area, emphasizing that the Defendants' actions were a clear attempt to disrupt the due process of the English proceedings.
Analysis This case presents a rare set of circumstances, underscoring the readiness of the High Court to use its discretionary power to grant anti-suit injunctions to protect the sanctity of the English Court and its procedures, even in the absence of established case law. The ruling sends a clear message to litigants that such conduct will not be tolerated.
English (US)