WWRT Ltd v Serhiy Tyshchenko
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Bacon |
| Judgment Date | 02 August 2023 |
| Neutral Citation | [2023] EWHC 2043 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: BL-2020-001416 |
[2023] EWHC 2043 (Ch)
Mrs Justice Bacon
Claim No: BL-2020-001416
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Andrew Ayres KC (instructed by Rosling King LLP) for the Claimant
The Defendants appeared in person via Microsoft Teams
Hearing date: 2 August 2023
Approved Judgment
Introduction and background
This is an application by the claimant seeking urgent relief to require Mr Tyshchenko to withdraw a claim in Ukraine against the claimant's Ukrainian law expert and other anti-suit and anti-enforcement orders against both defendants. The background to these proceedings is set out in previous judgments of this court, including in particular the court's judgment on the grant of an initial without notice freezing injunction [2020] EWHC 2409 (Ch), and a judgment dismissing numerous applications by the defendants seeking to strike out or stay the present proceedings [2023] EWHC 79 (Ch). Following recent case management conferences, the trial in these proceedings has now been set down to commence in January 2025, with a time estimate of 18 days.
The Ukrainian claim which is the subject of this application was issued by Mr Tyshchenko on 28 October 2022 with Mrs Tyshchenko joined as a third party. The claim is in quite extraordinary terms. It requires the claimant's long-standing expert in these proceedings, Dr Vadim Tsiura, to refute the entirety of two expert reports which he has given to this court in the course of these proceedings: specifically his first report dated 30 August 2020 and his fifth report dated 25 November 2022, which were relied upon by the court in the two judgments cited above.
The effect of the Ukrainian claim, if finally upheld, will be that Dr Tsiura will have to either breach his duty to this court by refuting opinions that he honestly holds, or breach an order of the courts of Ukraine where he lives and works.
The claimant first became aware of the claim on about 12 December 2022, when it was referred to in the witness statements of the defendants in these proceedings. On 10 January 2023 Dr Tsiura applied to set aside the claim. The Commercial Court of Kyiv gave its judgment on 27 January 2023, dismissing Dr Tsiura's challenge and allowing the claim in full. It ordered Dr Tsiura to refute the conclusions provided by him in the two reports “in the same manner as they were distributed”.
Dr Tsiura appealed that judgment and the appeal was listed to be heard before the Northern Commercial Court of Appeal of Ukraine on 20 May 2023. Shortly before the hearing, Dr Tsiura's advocate received orders to engage with the defence of Kyiv in the ongoing war with Russia. Dr Tsiura applied to adjourn the appeal hearing on that basis, but the Court of Appeal refused and also refused to allow Dr Tsiura to instruct another lawyer. Instead, it simply proceeded to hear the appeal without any representation on the part of Dr Tsiura. The appeal was then dismissed on the day of the hearing, on the basis of a judgment circulated later which replicated almost word for word the first instance judgment.
Dr Tsiura then appealed to the Ukrainian Supreme Court. On 7 July 2023 he was informed that his appeal was listed to take place on 15 August 2023. That is the reason for the urgent listing of this application in the circumstances I have already explained in my judgment on the adjournment application given earlier today.
As in previous hearings, Mr Ayres KC has appeared before me today for the claimant. The defendants have appeared in person via Microsoft Teams, with submissions being made on their behalf principally by Mrs Tyshchenko. Those were followed by brief further submissions by Mr Tyshchenko in Russian, translated into English for the court by Mrs Tyshchenko.
Legal test
The court's power to grant an anti-suit injunction is derived from s. 37(1) of the Senior Courts Act 1981, which provides that the court may grant interim or final injunctions where “it appears to the court to be just and convenient to do so”. It is well-established that this power extends to the grant of anti-suit injunctions where the continuation of foreign proceedings is “unconscionable”: South Carolina Insurance v Assurantie Maatshappij [1987] 1 AC 24, p. 40. A core example of that is where the foreign proceedings are regarded as “vexatious or oppressive”: SAS Institute v World Programming [2020] EWCA Civ 599, [2020] 1 CLC 816, §90.
In Deutsche Bank v Highland Crusader Partners [2009] EWCA Civ 725, [2010] 1 WLR 1023, §50, the court set out eight principles applicable to the grant of anti-suit injunctions. From that and other judgments to which Mr Ayres has referred, I draw the following propositions of particular relevance to this application:
i) The court needs personal jurisdiction over the respondent to grant relief. Deutsche Bank §50(1).
ii) The party seeking an anti-suit injunction must generally show that the proceedings before the foreign court are or would be vexatious or oppressive: Deutsche Bank §50(2).
iii) An anti-suit injunction always requires caution, and indeed “extreme caution”, because by definition it involves interference with the process or potential process of a foreign court. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention: Bank of Tokyo v Karoon [1987] 1 AC 45, p. 59; Deutsche Bank §50(5).
iv) The principle of judicial comity requires that the English forum should have a sufficient interest in or connection with the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails: Airbus v Patel [1999] 1 AC 119, p. 138.
v) The decision whether or not to grant an anti-suit injunction involves an exercise of discretion and the principles governing it contain an element of flexibility: Deutsche Bank §50(8).
One situation where it is established that an anti-suit injunction may be granted is where the foreign proceedings amount to collateral interference with the English proceedings: Raphael, Anti-Suit Injunctions (2 nd ed, 2019), §§5.47–5.56. One line of cases concerns the use of s. 1782 proceedings in the US courts to obtain evidence or cross-examination of witnesses in circumstances where that would disrupt an English trial.
The converse situation noted by Raphael at §5.55 is where foreign proceedings are brought to punish, dissuade or prevent the use of evidence in the English action. While the commentary notes that the case law here is undeveloped, §5.56 refers to Arab Monetary Fund v Hashim (No. 6), Financial Times Law Reports, 23 July 1992, where Hoffman J held that there was “no doubt” that the court had jurisdiction to grant an injunction in circumstances where US proceedings had been commenced alleging that evidence filed by a witness in support of a freezing order in the English courts contained false statements. On the facts, the order was not made because among other things there was nothing to suggest that the US action had been commenced to dissuade the witness from giving evidence in the UK.
The courts may also consider the grant of an anti-enforcement injunction as an alternative to an anti-suit injunction, where judgment has already been given in the foreign proceedings. While these cases are rare, there is no distinct jurisdictional requirement that this sort of injunction should only be granted in an exceptional case. This sort of injunction will only rarely be granted because it is only in a rare case that the conditions for the grant of the injunction will be met, and not because there is an additional requirement of exceptionality: SAS Institute §93.
It is, as the authorities emphasise, a very serious matter for the English court to grant any injunction to restrain enforcement in a foreign country of a judgment to the court of that country: SAS Institute §98. But there is no absolute bar to the court doing so.
One relevant factor in relation to both anti-suit and anti-enforcement injunctions will be the promptness of the action taken by the applicant in relation to the foreign proceedings. In Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA), Christopher Clarke LJ noted at §133 that “The longer an action continues without any attempt to restrain it the less likely a court is to grant an injunction and considerations of comity have greater force.”
Finally, as to the legal test, there is some debate as to whether what is required is to show a high probability that the applicant is entitled to the relief sought, or rather that the applicant is indeed entitled to that relief: Raphael §§13.44 to 13.47. Mr Ayres submitted (rightly in my judgment) that the latter higher test should apply, given that this is not in substance an interim application, but is an application seeking final relief. His submission was that this court can indeed be fully satisfied that he is entitled to the relief sought.
The present application
Effect of the Ukrainian claim on these proceedings
There is, as Mr Ayres candidly accepted, no case where an anti-suit injunction has been sought on facts comparable to the present. There is a likely reason for that, which is that it is extremely unusual for a party to proceedings to launch such a direct and unambiguous attack in a foreign court on the substance of the evidence given in domestic proceedings.
There is no doubt that the court has personal jurisdiction over both of the...
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