CL-2025-000062 - [2025] EWHC 1506 (Comm)

For completeness only, Elara and the Bondholders rely also on a number of other factors as going to the discretion. The first is the question of “clean hands”. It is argued that Eraaya failed to disclose the following material matters: (1) that it was in breach of key provisions of the Bonds; (2) that VLL is under common control; (3) that the VLL Loan was not disclosed in the Offering Circular and is on uncommercial terms; and (4) the risk that may eventuate in respect of the shares in Ebix UK is already outside Eraaya’s control; (5) the existence of the Status Quo Order and the possibility of the Injunction Application being in breach of the order; (6) that Eraaya had not exhibited complete versions of several of the documents it relies upon and (7) that Eraaya was not transparent about the position as to the timing of the risk of losing Ebix.

Issues are also raised as to (i) the opacity of the evidence as to the draw down of US$20m of the proceeds from the Second Bond Issue when the Bondholders only consented to the entire US$20m being released for the purposes of repaying a loan from Oyster Bay; (ii) issues as to the authenticity of Schedule 1 to the Second Settlement Agency Agreement, which Eraaya has declined to address; (iii) Eraaya’s conduct in the Proceedings to date – in particular in seeking to shut out the Bondholders from defending the Injunction Application.

Finally there is the question of delay. Elara refused to provide the confirmation now sought by the Injunction Application on 5 November 2024. Eraaya’s evidence explains that, after that date, Eraaya and GLAS were negotiating the terms of the draft pledge until 17 January 2025, when negotiations failed. There has been no explanation as to: (1) why Eraaya did not bring proceedings to require Elara to give the confirmation before that date, given that Eraaya asserts that its claim is so strong that there is “no defence to the claim at all” or (2) why Eraaya did not serve the Injunction Application until almost two months later, on 12 March 2025.

Of these factors the only one to which I would be minded to give much weight in this context is the question of delay – and that in itself elides with the seventh of the clean hands points. The other points really are more concerned with the way in which this hearing was obtained on an expedited basis.

Delay however is a factor which legitimately falls to be taken into account in the Court’s assessment. It adds another element to the balance against the grant of relief. However, with or without that factor the result would be the same: the application for an injunction fails.