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

Fecha: 18-Jul-2025

The alleged lack of merit in the Greek Proceedings

The alleged lack of merit in the Greek Proceedings

132.

The bar for establishing vexation and oppression by reference to the lack of merit in the proceedings to be injuncted is a high one: Mr Lissack KC accepted it involved a “heavy, heavy burden”. In Vitol Bahrain EC v Nasdec General Trading LLC [2013] EWHC 3359 (Comm), [50]-[59], Males J reviewed the relevant authorities and summarised the applicable legal principles as follows:

It is not the function of the English court to determine which cases proceeding in foreign courts have sufficient merit to be allowed to proceed.

ii)

Cases where the weakness of the foreign proceedings has been a factor, including in rare cases a decisive factor, in the grant of an injunction have all been cases where the English court has intervened to protect an interest of its own and which have involved something akin to bad faith on the part of the foreign claimant, with the hopeless nature of the claim providing evidence of such bad faith or similarly vexatious conduct, as distinct from being a reason in itself to grant an injunction.

iii)

It is only in an exceptional case that the English court should conclude that a claim advanced in proceedings abroad is hopeless.

133.

In this case, it is said that the Greek Proceedings are hopeless in two respects.

134.

The first is that the Greek court will find that the applicable law of the tort is the law of England and Wales, and on that basis will uphold clause 33.1(c). The issue of the applicable law of the tort in this case is not straightforward. I deal with the issue of whether the Directors have a sufficiently arguable case for jurisdiction purposes that the applicable law is the law of England and Wales at [171]-[182] below. For present purposes, it is sufficient to observe:

The case for the application of Greek law under Article 4 of Rome II is far from hopeless. I am satisfied that the general rule in Article 4(1) points to Greek law. There are arguments as to whether English law applies by virtue of the Article 4(3) exception, albeit I regard JPM as having the better of that argument on the basis of the submissions I have heard. The Greek law experts, with their experience of the Greek courts, offer different views of how the point is likely to be decided there.

ii)

There are credible arguments available to both sides on the issue of whether there has been a choice of English law as the law of tort claims against the Directors for the purposes of Article 14(1) of Rome II, which I do not feel able to decide.

iii)

There is an issue of whether JPM’s Delaware domicile is sufficient to oust the application of Article 14(2), which Professor Gortsos, at least, suggests may not be the conclusion of a Greek court.

iv)

Further, it is common ground that Articles 919 and 332 are mandatory provisions of Greek law which cannot be derogated from by agreement. That raises the possibility of English law being disapplied under Articles 16 and 26 of Rome II (with the experts offering different predictions as to how the Greek courts will decide this latter issue).

135.

It will be apparent that this is very far from the exceptional type of case envisaged by Males J, in which the claim run is so weak that it is capable of supporting an inference of bad faith for that reason.

136.

The second is that the case as to causation and loss is wholly inadequate, or at least inadequately pleaded. On the evidence before me, the document used by JPM to initiate the Greek Proceedings complies with Greek pleading requirements, and will be significantly supplemented by the next round of pleadings in September this year. In addition further explanation of the basis of the claim has been provided by Mr Robinson. I have made some observations on the loss claimed at [18]. I am far from persuaded that I can conclude that there is no arguable claim for significant loss at this stage, albeit (as is frequently the case at the start of major litigation), the realistic horizons of the loss claim are currently difficult to discern.