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

Fecha: 18-Jun-2025

The parties’ submissions

The parties’ submissions

171.

The primary position of the Bondholders (and Elara, who issued an application mirroring that of the Bondholders) is that their past use, and their legal representatives’ past use of the application documents served on Elara the Documents does not breach CPR 31.22 or 32.12. As such, they seek an appropriate declaration which confirms this fact. That application was forcefully opposed.

172.

In essence the Bondholders and Elara submitted that there was no breach, by reference to Grosvenor Chemicals Ltd v UPL Europe Ltd[2017] EWHC 1893 (Ch) and Caldero Trading Ltd v Beppler & Jacobson Ltd[2012] EWHC 1609 (Ch). Their position was that this use of the Documents was, by definition, use “for the purpose of the proceedings” in which the Documents were disclosed, and not for some collateral purpose. Alternatively they submitted that if there had been a breach retrospective permission should be granted in the light of the facts that:

The Bondholders and their legal team only used the Documents for 3.5 days, two of which were a weekend, and then only for the purpose of considering how to respond to the Injunction Application. In that regard:

It would not have been a collateral use for Elara to use the disclosed Documents for the purposes of adding the Bondholders as a new party to the Injunction Application, being the action in which the Documents were disclosed. In the circumstances, it should make no difference that Elara provided the Documents to the Bondholders who then used them to consider how to respond to the Injunction Application, as opposed to Elara itself using the Documents to apply to add the Bondholders as Respondents to that Application and then providing the Documents to the Bondholders. A contrary conclusion would be a victory of form over substance.

The Bondholders were (and are) the parties who would be most affected if the Court wrongly granted the injunctive relief sought.

173.

Eraaya contended by reference to Vardy v Rooney[2022] EWHC 304 (QB) at [90] that the case fell well on the wrong side of the line. It is said not to be remotely akin to cases such as Caldero Trading or Grosvenor Chemicals, to be a provision to separate third parties for them to use as they wished – and without any qualification in the cover letter and to be clearly advertent – deliberate and with an aim in mind. Consequently it is said that retrospective permission should not be granted.