CL-2024-000450 - [2025] EWHC 2968 (Comm)

Fecha: 13-Nov-2025

Is the claimants’ possession of illicit knowledge likely to obstruct the just disposal of these proceedings or otherwise create a substantial risk to a fair trial?

(3)

Is the claimants’ possession of illicit knowledge likely to obstruct the just disposal of these proceedings or otherwise create a substantial risk to a fair trial?

70.

Unlike the examination of accrued abuse of process under Issue (1) above, this depends upon the outcome of Issue (2) above.

71.

It is appropriate to adjourn any application for injunctive relief, if properly made and unless the claimants are willing to extend their undertaking on suitable terms, to the Information Review Hearing.

72.

The same applies to that part of the strike out application which depends on this forward-looking element and, therefore, the outcome of Issue (2) in future. I cannot tie the hands of the judge who deals with those matters, save in so far as my decision on Issue (4) in light of Issue (5) will inevitably form part of the circumstances in which or by reference to which that judge exercises their own broad discretion if satisfied that it arises following the outcome to Issue (3) itself.

73.

The same should also apply, in my judgment, to the Astor Defendants’ alternative cross-application seeking to discharge the WFOs on the basis of the claimants’ abuse of process. The reasoning here is different:

(i)

Despite prolific citation of authorities providing only analogous or comparative guidance, none was identified in which a claimants’ subsequent abuse of process formed the basis of the Court’s decision to discharge an existing freezing order or any other injunction. This does not mean it cannot happen, including by loss of clean hands in equity.

(ii)

The WFOs were obtained prior to the claimants’ abuse of process and are not themselves the direct product of any benefit derived from the illicit knowledge. They nevertheless exert continuing pressure upon the defendants.

(iii)

Calver J refused to discharge the WFOs on 7 October 2024. The first unsolicited contact made by BC with X occurred just four days earlier, and the first (virtual) meeting took place on 10 October 2024. In one sense, therefore, the claimants secured a benefit in the form of Calver J’s Order which continued the WFOs against the Astor Defendants, together with a reasoned judgment containing observations and conclusions as summarised in paragraph 11 above.

(iv)

The existence of BC’s involvement and the illicit information was disclosed by the claimants through Mr Ford’s first witness statement made in support of the summary judgment application on 5 March 2025: see paragraph 32 above. The Astor Defendants’ appeal against the Order of Calver J was then pending. It was heard on 4 June. The Court of Appeal’s judgment was handed down on 28 July. No point about abuse of process or unclean hands was taken, or at any rate this feature of the case did not warrant a mention by the Court of Appeal in its judgment dismissing that appeal. This might be said to neutralise or reduce the impact of the claimants’ abuse upon their maintenance of the WFOs.

(v)

In so far as it is said to be contrary to conscience or involve a lack of clean hands on the part of the claimants to seek to maintain the strategic advantages of the WFOs despite their abusive conduct, there is some sense in this alternative cross-application being restored before Calver J, if available. The claimants sought to have their summary judgment application listed before that judge for reasons of familiarity and efficiency, although this rationale may now have lapsed.

(vi)

At any rate, the extent of the impact of the claimants’ abuse of process and (therefore) the extent to which its litigation conscience is sullied cannot be known until Issue (2) and then Issue (3) are determined at the Information Review Hearing.

(vii)

It is, therefore, just in all the circumstances to adjourn the alternative cross-application to that further hearing or its own consequentials.

74.

Having dealt with aspects of the cross-application which can be adjourned or deferred to await the outcome of Issue (3), I now move to the important question of how the Court should deal with the claimants’ abuse of process in light of my findings under Issue (1).