CL-2025-000010 and CL-2025-000091 - [2025] EWHC 1842 (Comm)

In Bourlakova, [48], Trower J accepted that foreign proceedings brought in bad faith or with the intention and effect of harassing the person seeking an anti-suit injunction can justify ASI relief, not least because it will normally be appropriate to stigmatise such conduct as unconscionable. 

I accept the evidence of Mr Christopher Robinson of JPM’s solicitors that the Greek Proceedings have not been brought for the purpose of vexing the Directors or WRL, nor for the collateral purpose of preventing WRL from raising the funding necessary to exercise the call option and buy JPM out at a fair market value. Mr Lissack KC very properly accepted Mr Robinson’s evidence as to his own state of mind. Further, the point made by Mr Robinson that, far from wanting to make it difficult for WRL to raise cash, JPM wanted to exit what had become a toxic business relationship at a fair market price and was happy for WRL to raise the cash necessary to make this happen, makes good commercial sense. This is a type of party for whom “the bottom line” is likely to be far more of an animating consideration than alleged personal animosities.

It may be that the Greek Proceedings are making it more difficult or expensive for WRL to raise the funds to buy JPM out (although the evidence of the existence and extent of any such difficulty is thin, essentially consisting of unevidenced assertions, and the explanations offered for the difficulty have not been entirely consistent). Regardless of the Greek Proceedings, it is clear from the two sets of English proceedings, the Greek defamation proceedings and the criminal complaint that the relationship between WRL and JPM, and between their respective appointed directors, is a dire one, and identifying any additional difficulties said to have followed from the attempt to open a yet further front in this commercial war is extremely difficult. That is equally true of the alleged difficulty in retaining or replacing director appointees.

Nor am I persuaded that I can infer that the Greek Proceedings are subjectively vexatious because a damages claim against the Directors cannot realistically be met. I have already expressed a provisional, but relatively uninformed view, that it would be very surprising if JPM’s shareholding turned out to have no value, but I am unable to rule out that possibility, still less that some lesser, but still highly significant, sum might be recovered ([18]). Further one of the Directors, Mr Karonis, has an 81.95% interest in WRL, which in turn has a majority stake in Viva. That is clearly an asset which may well have significant value, and acquiring ownership of it pursuant to the execution of any damages judgment obtained against Mr Karonis a significant commercial benefit for JPM. The fact that the position of others of the Directors may be different does not make proceeding against them in respect of the same acts subjectively vexatious.

It is said that a bad motive can be inferred from the fact that no proceedings were brought against the Viva directors nominated by JPM, but the essence of the Greek Proceedings is that the Directors, acting collectively, used their majority control to disenfranchise the JPM appointed directors and frustrate their attempts to protect JPM’s interests. It is scarcely surprising that the JPM nominated directors were not made defendants to such a claim.

It is also said an improper motive can be inferred from the fact that the Greek Proceedings were initiated shortly after the Court of Appeal hearing referred to at [9(iii)] above (albeit just over three weeks before a draft judgment was distributed), it being suggested that JPM had read the runes at the hearing itself, and launched the Greek Proceedings as a result. That may well be so – without having been present at the hearing, I am unable to form a reliable assessment. However, even assuming that it is, I do not see why a conclusion that one strategy for dealing with JPM’s perceived problems in relation to its minority interest in Viva (buying WRL out and becoming sole owner) might no longer be open could not perfectly properly lead to an attempt to pursue another strategy to the same end, namely to sue for damages for acts alleged to have reduced the value of its minority shareholding and associated rights. Complaints about the timing of the claim – the collapse of negotiations in December 2024, a letter before action on Christmas Eve and no sufficient time to reply before proceedings were commenced – were, with respect, a little unworldly in litigation of this type, and may have reflected the very real anti-suit risk which has, in the event, materialised.

Finally, the objective effect of the Greek Proceedings on the Directors and WRL is relied upon. It is said that the Directors feel intimidated by the size of the claim. That may well be the case, albeit the position taken by WRL and the Directors that the claim is hopeless and the quantum overstated may bring some solace in this respect. Clearly, being on the receiving end of any (and a fortiori a large) claim is an unpleasant experience (as it was no doubt unpleasant for the JPM-nominated directors to be on the receiving end of defamation claims and a criminal complaint). However, the size of the claim reflects the high value nature of the transactions, and its subjective effects on those on the receiving end do not assist me in determining that the Greek Proceedings are vexatious and oppressive.

It would be naïve to suppose that the Greek Proceedings do not form part of JPM’s strategy for dealing with what, to date at least, appears to have been an unhappy joint venture experience for both parties, and that they are not a new front in a wider commercial battle. That is a regular feature of the major cross-border litigation which features in this court, and is a litigation strategy which I am sure WRL and the Directors, and those who advise them are fully familiar with. That does not, however, suffice to make them subjectively vexatious and oppressive. I accept that even in litigation of this scale and intensity, there can come a point when matters move beyond “strongly fought” and “no holds barred” litigation and one party engages in abusive conduct: this was the position in the “Metro” litigation, when it came before Rix LJ in Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [69] to which Mr Lissack KC referred me. However, while this is undoubtedly commercial litigation which, for both parties, is “red in tooth and claw”, I do not think it can fairly be said that the Greek Proceedings are subjectively vexatious and oppressive.