English High Court Rules Against Stay in Abraaj Investment Management Limited v Kes Power Limited Dispute

Citation: [2024] EWHC 41 (Comm)
Judgment on


In the English High Court case of Abraaj Investment Management Limited & Anor v Kes Power Limited, a litany of complex legal issues were analyzed, leading to a detailed judgment by Sean O’Sullivan KC, sitting as a Deputy High Court Judge. The core issue revolved around an application for a stay of the English proceedings while a dispute about representation of the defendant company was resolved in the Cayman Islands. This article delves into the significant legal principles at play, the application of those principles to the facts of the case, and the reasoning behind the court’s ruling.

Key Facts

The Claimants, comprising a management company and an entity that acquired an alleged debt, assert that the Defendant company owed a substantial sum plus interest for consultancy services. The Defendant company, involved in the energy sector in Pakistan, has multiple shareholders, and the internal dispute about who could represent it in court proceedings led to the stay application. Sean O’Sullivan KC had to consider several factors: the intricate relationships among claimants, defendant, and various stakeholders; the acknowledgment of the debt in past accounts; the legal appropriateness of a stay; and concerns about the integrity of the English litigation process.

Principle of Access to Justice

The judgment emphasises the principle that an individual or entity that brings bona fide claims before a court should have “untramelled access,” barring exceptional circumstances such as abuse of process. The court reserves discretion under CPR 3.1(2)(f) to stay proceedings, but judicial caution is advised when invoking this (Abraham v Thompson [1997] 4 All ER 362).

Abuse of Process

The case invoked the concept of abuse of process, a term without rigid categorisation, but generally associated with conduct that distorts the rightful use of the court’s procedures (Hunter v Chief Constable of the West Midlands [1982] AC 529).

Foss v Harbottle Rule

The court also referred to the rule in Foss v Harbottle, which dictates that the proper plaintiff in an action in respect of a wrong done to a company is the company itself, not an individual shareholder or a director; this principle underscores the autonomy of a company as a legal entity separate from its controllers.

Director or Shareholder Participation in Proceedings

The court discussed the circumstances under which an individual, such as a director or shareholder, could be joined to an action involving the company, arguing against an apparent principle that would bar such an inclusion (Abdelmamoud v The Egyptian Association [2018] EWCA Civ 879).


The court rejected the application for a stay, citing an absence of abuse of process or compelling circumstance warranting such a remedy. It held that the commencement and pursuit of English proceedings by the claimants did not constitute an abuse, even amidst alleged directorial misconduct. The court approved the claimants’ proposal, allowing the applicant and other interested parties to participate in the proceedings as de facto interested parties without prejudice to the defendant company, thus providing a procedural pathway that safeguarded the interests of all parties and the integrity of the court process.


The Deputy High Court Judge’s decision in this case underscores the English judiciary’s commitment to allowing access to justice while preventing misuse of its procedure. The judgment provides an insightful analysis into corporate governance disputes, the role of shareholders and directors in legal proceedings, and the balance between ensuring fair representation and avoiding unnecessary delay. It also illustrates the court’s willingness to adopt creative solutions to complex procedural issues, ensuring that justice is served in both substance and form. The case serves as a valuable precedent for situations where internal corporate disputes have the potential to affect litigation strategies.