Hannah Sharp, a partner in Rosling King’s Dispute Resolution Group and a member of the Claimant’s team, represented Defendants who sued an expert witness in his native jurisdiction. The Claimant was successful in obtaining a novel injunction against the suit.
The injunction required that the abuse claim against the expert witness made in the Ukrainian court be withdrawn. This case highlights the High Court’s willingness to grant anti-suits injunctions, even when the caselaw is not developed, to protect the integrity and processes of the English Court.
Case Summary
The High Court delivered another judgment on 2 August 2023 in this long-running and bitterly fought legal dispute. This time, it granted an anti-suit order against the First Defendants Mr. and Mrs. Tyshchenko. It required them to withdraw their claim in Ukraine against a Ukrainian law expert who was working for the Claimant WWRT Limited. In exercising her discretionary power under section 37(1) of Senior Courts Act, 1981, Mrs Justice Bacon noted that “no other case has seen an anti-suit order sought on similar facts to the present.”
Background
WWRT brought a claim in the context of a recent judgment. WWRT claimed that loans were made by the now-defunct Ukrainian Bank JSC Fortuna Bank to borrowers who were associated with Mr. and Mrs. Tyshchenko, but had no intention of repaying the loans. The case has been going on since September 2020 when Kelyn Bakon (as she was then) issued an injunction freezing PS65 million against Mr. and Mrs. Tyshchenko without prior notice. WWRT’s request for a freeze order was supported with a report by WWRT’s Ukrainian law specialist, who has provided additional expert evidence in support of WWRT.
In October 2022 Mr Tyshchenko filed a claim against the expert of WWRT in Ukraine, and Mrs Tyshchenko was listed as a party. In the claim, the plaintiffs sought an order recognizing the expert’s conclusions in some of his reports during the English proceedings to be unlawful and ordering him to recant any evidence contained in these reports. The Commercial Court of Kyiv, and the North Commercial Court of Appeal rejected the expert’s request for the closure of the claim. The Ukrainian Supreme Court has scheduled his appeal for 15 August 2023.
The English Court has ruled that the suit against the expert is abusive, vexatious and illegitimate.
Legal Test
The Court has the power to grant anti-suit injunctions under s.37(1) of the Senior Courts Act, 1981. This section states that “it appears to a court to be just and reasonable to do so”. South Carolina Insurance [1987] 1 AC 24, which extends this power to anti-suit injunctions when the continuation of proceedings is “unconscionable”. This is most evident when the foreign proceedings are considered “vexatious” or “oppressive”.
The Decision
This latest development saw Mrs Justice Bacon grant the first anti-suit injunction of its kind against Mr and Ms Tyshchenko. She ordered the withdrawal of the Ukrainian complaint against the expert on the grounds that it was both vexatious as well as oppressive. In her decision, Mrs Justice Bacon noted that the lack of authority is likely due to the fact that it’s “extremely rare for a party in proceedings to launch a direct and ambiguous attack on the substance in domestic proceedings in a foreign tribunal”.
Comparing the case to Arab Monetary Fund V Hashim (No. Financial Times Law Reports 23 July 1992. In that case, an order for a anti-suit injunction wasn’t granted, because there was no evidence that the US suit was initiated to prevent the witness from testifying in the UK. However, Mrs Justice Bacon in this case was convinced that Mr Tyshchenko brought the claim in an “abusive and blatant attempt to interfere” with the English proceedings, which had already been in progress for nearly three years.
Commentary
The decision shows that, despite the fact that the facts in this case were highly unusual, the High Court is willing to use its discretion and grant an anti-suit order to protect the integrity and processes of the English Court, even when the case law has not been developed. The judge in this case recognized the broader implications of this decision and the necessity to send “a clear signal to other litigants” that this type of conduct would not be tolerated.
For further information, please contact partner Hannah Sharp at Rosling King LLP on [email protected] or 0207 246 8000.
Hannah Sharp has been a partner at Rosling King’s Dispute Resolution Group since 2005. She specialises in domestic and international commercial litigation and fraud, as well as financial services disputes. Hannah Sharp has extensive experience acting for financial institutions (investment and retail), corporates, and ultra-high net worth individuals in a wide range of complex disputes.
Rosling King LLP, a law firm based in London, specializes in serving financial institutions and corporate clients. Visit www.rkllp.com for more information.