WWRT Limited v Kostiantyn Valentynovych Zhevago
[2024] EWHC 122 (Comm)
WWRT Limited v Serhiy Tyshcheniko & Anor
2 August 2023
[2023] EWHC 2043 (Ch)
High Court
Imagine someone sues your expert witness in another country to make them change their testimony in your case here. The court said that's not fair and stopped the other lawsuit, ordering them to drop their case against the expert.
Key Facts
- •WWRT Limited sought an anti-suit injunction against Serhiy and Olena Tyshchenko to prevent a vexatious Ukrainian claim against WWRT's expert witness, Dr. Vadim Tsiura.
- •The Ukrainian claim demanded Dr. Tsiura refute his expert reports submitted to the English court, forcing him to either breach his duty to the English court or Ukrainian court orders.
- •The Ukrainian courts dismissed Dr. Tsiura's challenges to the claim, despite his appeal being hampered by his lawyer's deployment in the Russo-Ukrainian war.
- •The English proceedings against the Tyshchenkos had been ongoing since September 2020, with trial set for January 2025.
- •The claimant argued the Ukrainian claim was a collateral attack on the English proceedings and an abuse of process.
Legal Principles
The court's power to grant an anti-suit injunction is derived from s. 37(1) of the Senior Courts Act 1981, where it appears just and convenient.
Senior Courts Act 1981, s. 37(1)
The power extends to cases where the continuation of foreign proceedings is unconscionable, vexatious, or oppressive.
South Carolina Insurance v Assurantie Maatshappij [1987] 1 AC 24; SAS Institute v World Programming [2020] EWCA Civ 599
Eight principles apply to granting anti-suit injunctions, including personal jurisdiction over the respondent, showing vexatious or oppressive foreign proceedings, and considering judicial comity.
Deutsche Bank v Highland Crusader Partners [2009] EWCA Civ 725
Anti-suit injunctions may be granted where foreign proceedings amount to collateral interference with English proceedings, particularly if aimed at punishing or preventing the use of evidence in the English action.
Raphael, Anti-Suit Injunctions (2nd ed, 2019), §§5.47–5.56; Arab Monetary Fund v Hashim (No. 6)
Anti-enforcement injunctions are a rarer alternative, requiring no additional exceptionality beyond the usual conditions for injunctions.
SAS Institute §93
Prompt action regarding foreign proceedings is a relevant factor.
Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA)
The court needs to be fully satisfied the applicant is entitled to relief, not just show a high probability.
Raphael §§13.44 to 13.47
Issues of foreign law in domestic proceedings are issues of fact, proven by expert evidence, but this does not remove the jurisdiction of English courts to determine them.
The Kyrgyz Republic v Stans Energy Corporation [2017] EWHC 2539 (Comm)
Outcomes
The court granted an anti-suit injunction.
The Ukrainian claim was vexatious and oppressive, a collateral attack on the English proceedings, and an abuse of process aimed at preventing Dr. Tsiura from giving honest evidence.
Mr. Tyshchenko was ordered to withdraw the Ukrainian claim.
To prevent interference with the English court's process.
Mrs. Tyshchenko was ordered to cooperate with the withdrawal and prohibited from preventing it.
Her role as a third party in the Ukrainian proceedings, joined at Mr. Tyshchenko's request.
An anti-enforcement injunction prevented the defendants from enforcing any Ukrainian judgment against Dr. Tsiura.
To safeguard Dr. Tsiura from potential enforcement even if the withdrawal attempt fails.
No undertaking in damages was required from the claimant.
Because this was an application for final relief.
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