Ebury Partners Belgium NV/SA v Grossiste Francochine SARL
[2023] EWHC 3396 (Comm)
Robert Gagliardi v Evolution Capital Management LLC
29 June 2023
[2023] EWHC 1608 (Comm)
High Court
A guy sued his former employer in the UK, but the employer also sued him in the US. A UK judge said the employer broke a promise not to keep fighting in the US, and that the UK was the right place to fight this legal battle because the employee usually worked in the UK. The judge stopped the US case to protect the employee's right to be sued in the UK.
Key Facts
- •Mr. Gagliardi (Claimant) seeks an anti-suit injunction (ASI) against Evolution Capital Management LLC (Defendant) to prevent them from pursuing proceedings in New York.
- •The dispute concerns outstanding bonus amounts and a declaration that Mr. Gagliardi is not owed the bonus.
- •Mr. Gagliardi contends he has a statutory right under s15 C(3) of the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982) to be sued in England and Wales.
- •Evolution disputes jurisdiction and the applicability of s.15 C(3) and s.15 C(2)(b) of the CJJA 1982.
- •A Consent Order was previously made where Evolution undertook not to further prosecute the New York proceedings before a combined hearing, and to cooperate to ensure no further steps were taken by the New York court of its own motion.
- •The New York court dismissed Mr. Gagliardi's motion to dismiss and ordered him to serve his Answer.
- •Evolution refused to join Mr. Gagliardi in applying to stay the New York proceedings, claiming the order was within the scope of the previous undertaking.
- •The court found Evolution breached its undertaking.
Legal Principles
For an ASI to restrain foreign proceedings in breach of a binding agreement, the court must consider whether it is 'just and convenient' under s.37(1) of the Senior Courts Act 1981; the touchstone is what the ends of justice require.
AIG Europe SA v John Wood Group Plc and ors [2021] EWHC 2567 (Comm), [2022] EWCA Civ 781
The same test applies when an ASI is sought because the defendant is exercising a right conditioned by an obligation to assert that right only in a specific forum.
QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm)
To establish personal jurisdiction, the claimant must show a 'good arguable case' that a relevant jurisdictional gateway is engaged.
Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10
An ASI should ordinarily be granted to restrain an employer from bringing proceedings outside the UK to protect an employee's rights under s.15 C(3) of the CJJA 1982.
Samengo-Turner v J&H Marsh & McLennan (Services) [2008] ICR 18; Petter v EMC Europe Ltd [2015] CP Rep 47
An individual is domiciled in the UK if resident in the UK and the nature and circumstances of that residence indicate a substantial connection with the UK; this is presumed if resident for at least three months.
s41(2) and s41(6) CJJA 1982; Stait v Cosmos Insurance Ltd Cyprus [2022] EWCA Civ 1429; Chowdhury v PZU SA [2021] EWHC 3037 (QB)
For the purposes of the Brussels Regulation, an employee must have the necessary relationship of subordination with the employer.
Arcadia Petroleum Ltd v Bosworth [2020] ICR 349; Alta Trading UK Ltd v Bosworth [2021] ICR 1358
Outcomes
The court found Evolution breached its undertaking not to take further steps in the New York proceedings.
The court found Evolution's interpretation of its undertaking was incorrect and its actions opportunistic.
The court found it had personal jurisdiction over Evolution.
Mr. Gagliardi habitually worked in London for Evolution, satisfying s.15 C(2)(b) of the CJJA 1982.
The court found Mr. Gagliardi was domiciled in England and an employee of Evolution for the purposes of s.15 C of the CJJA 1982.
Sufficient evidence established Mr. Gagliardi's residence and substantial connection to the UK, and the necessary relationship of subordination to Evolution.
A prohibitive anti-suit injunction was granted.
Mr. Gagliardi has a statutory right to be sued only in England, and there are no strong reasons to refuse the injunction.
Evolution was ordered to cooperate in a joint approach to the New York court to stay or extend the time for Mr. Gagliardi to file his Answer.
This was deemed appropriate given Evolution's previous undertaking.