KB-2025-001160 - [2025] EWHC 2369 (KB)

Mr Oudkerk’s arguments do not score well against the three key factors in relation to this species of abuse of process identified by Ginsberg J in the New Hampshire case and approved by the Court of Appeal in LA Micro and Malik. First, leaving aside the point that BISL is a different party and assuming that this does not matter for the reasons given at [46(b)], above, I do not accept that BISL’s position is “clearly inconsistent” with LLC’s earlier and, indeed, current position in the US proceedings.

The context in which the pleadings in the US proceedings should be read is important. The Amended Complaint is not, and is not intended or required to be, a fully particularised statement of the losses claimed by LLC and the basis on which they are claimed. Nor would it have been read as such by the North Carolina Court. Mr Bedford explains that, as matters stand, LLC’s broad position in the US proceedings is that, as a result of Corinthia’s interference, it has suffered multiple heads of loss in addition to loss of profits arising from the US Defendants’ conduct, a position which will be refined and particularised as appropriate in due course. The Amended Complaint does not make, and is not required at this stage to make, a specific counterfactual case as to what would have happened, but for Corinthia’s interference. After the taking of depositions in the US proceedings has been completed the next step will be for LLC to seek to adduce expert evidence as to the scope and quantum of damages. Mr Bedford also states that in North Carolina, as here, there is a rule against double recovery: LLC would not be able to claim sums which BISL recovered and vice versa.

Mr Bedford’s evidence about the context for, and nature of, the Amended Complaint is borne out by the text of the document itself. [44] of that document, relied on by Mr Oudkerk (see [72(c)], above) merely forms part of an account of the factual background. It does not get him anywhere near where he needs to be if the Application is to succeed.

[81] of the Amended Complaint does at least form part of one of the pleaded causes of action. But, as Ms McCafferty points out, the use of the word “Barings” throughout the Amended Complaint is often inconsistent as to which entity is referred to and/or inconsistent with the strict legal position. For example, despite the initial definition of “Barings” and “the Company”, and despite making clear in a footnote that “Barings Employees” includes the “Non-US Employees” including Mr Wheeler who were employed by BISL, there is reference to Mr Wheeler being employed by “Barings”. [81] itself uses “Barings” to refer to the Barings Group rather than LLC when it deals with confidentiality, and to refer to BISL and other affiliates of LLC when it refers to the Non US Employees informing “Barings of their long planned departures” (i.e. informing their employing entities by resigning). “Barings investors and borrowers” also apparently refers to investors and borrowers of Barings Group companies. It is therefore difficult to sustain the submission that [81] of the Amended Complaint was clearly referring to LLC when it referred to “causing Barings to incur substantial damages”. “Barings” was being used as a general reference to “the business” or “the firm”.

Moreover, the Amended Complaint goes on to plead, at [82]-[90], that the US Defendants were aware of “the Barings Employees’” contractual agreements with “the Company” (i.e. LLC although in fact these agreements were entered into with various Barings companies, as the footnote to the Amended Complaint referred to at [72(b)] above points out), and that these agreements prohibited various actions of “the Barings Employees”. Although clearly referring to all employees, including employees of BISL and other affiliates of LLC, and to customers of the Group as a whole, the following is pleaded:

“89.

Despite this knowledge, Defendants induced and attempted to induce Company employees to breach their employee agreements and to use and disclose Confidential Information and divert Company customers and goodwill to Corinthia.

90.

As a result of the acts alleged herein, Plaintiff has been injured in an amount exceeding $25,000.”

I therefore accept Ms McCafferty’s submission that it would be inconsistent with the drafting approach of the pleader of the Amended Complaint to read all references to “Barings” or “the Company” as “clearly” referring to LLC and therefore “clearly” representing that this particular corporate entity paid remuneration to all “Barings Employees”. Given that there were various causes of action alleged, and LLC plainly has not particularised its damages claims, it is also difficult to read the Amended Complaint as clearly or necessarily claiming the damages now claimed by BISL in the English proceedings.

Moreover, [35] of Mr Bedford’s witness statement has been taken out of context by Mr Oudkerk. This paragraph was addressing an argument which was ultimately abandoned by Mr Oudkerk, namely that the counterfactuals in the US proceedings are inconsistent with the counterfactual in the English proceedings. Mr Bedford was making the point that they were not: “the basic structure” of one of the counterfactuals is the same, i.e. it is contended in both sets of proceedings that the bonus awards would not have been paid had the team move been known earlier. But that counterfactual does not mean that LLC was necessarily claiming in respect of the payments made by BISL to its employees; on the basis of the same counterfactual, LLC could perfectly well claim in due course only in respect of the payments which it made to its employees, and leave BISL to sue for its own losses in this regard. There is therefore an element of prematurity about Mr Oudkerk’s complaint.

Turning to the exchanges between the parties in relation to Corinthia’s motion to stay, these were perhaps the high point of Mr Oudkerk’s argument. However, his reliance on the statement that “the Amended Complaint alleges that Barings – not Barings UK affiliate – suffered the injuries” begs the question whether the Amended Complaint claims the damages claimed by BISL in the present proceedings whereas, for the reasons I have given, I do not think that it clearly does. The position as to what claims for damages LLC is making and on what basis has not been crystallised or been particularised in the US proceedings. The passage from LLC’s submissions relied on by Mr Oudkerk (see [74] above) is capable of being read as saying that in fact LLC is only claiming for injuries which it alleges it suffered i.e. not for losses suffered by affiliated companies. I also note that the passage goes on to focus on the point that the confidential information which the employees wrongfully used or disclosed belongs to LLC, rather than on any claim in respect of remuneration.

So, for all of these reasons, I see Mr Oudkerk’s argument as to inconsistency but I do not accept that the inconsistency is “clear”. But, secondly, nor do I accept that BISL or, on Mr Oudkerk’s argument, LLC, has succeeded in persuading a court (the North Carolina Court) to accept BISL/LLC’s earlier position, so that judicial acceptance of BISL’s position in the English proceedings would create the perception that either court had been misled.

Mr Oudkerk was required to use a degree of ingenuity to assemble an argument that the North Carolina Court had relied on an understanding that LLC paid the relevant remuneration to the Non-US Employees and/or that LLC was claiming damages in respect of these sums in coming to its decision on the motion. However, with respect to him, the result was unconvincing. It is clear from the reasons given by the North Carolina Court that this was not a material factor in the decision on the motion to stay. The Judge said that he was required to determine whether “it plainly appears that” North Carolina “is an inconvenient forum and that another is available which would better serve the ends of justice and the convenience of [the] parties”. The law was that the following factors were potentially relevant, but it was not necessary to consider each factor:

“(1)

the nature of the case, (2) the convenience of the witnesses, (3) the availability of compulsory process to produce witnesses, (4) the relative ease of access to sources of proof, (5) the applicable law, (6) the burden of litigating matters not of local concern, (7) the desirability of litigating matters of local concern in local courts, (8) convenience and access to another forum, (9) choice of forum by plaintiff, and (10) all other practical considerations.”

The judge went on to base his decision on Barings’ choice of forum which, he said, “deserves great deference” given that North Carolina was LLC’s home forum and that the plaintiff’s choice is ordinarily given great deference in these circumstances. He said that this factor weighed heavily against a stay. He also relied on his view that the applicable law would include North Carolina law, albeit the laws of other jurisdictions including England might be relevant. He made no reference to the question of where the losses were suffered, still less to any impression that LLC had paid remuneration to the Non US Employees and was claiming damages to reflect this.

Mr Oudkerk argued that when, in the course of his judgment, the Judge said that the convenience of the witnesses and the ease of access to evidence was a neutral consideration because there were witnesses based in the USA and the United Kingdom, he clearly did not contemplate that there would be a second set of proceedings in England. In my view the Judge may or may not have contemplated this possibility. It is not apparent on the face of his decision. But to move from the proposition that he did not, to the argument that therefore he understood that the damages now claimed by BISL would be claimed by LLC in the US proceedings, and that he then materially relied on this understanding in coming to his decision on forum, seems to me to involve at least two leaps too many. I therefore do not accept that there is any evidence that the North Carolina Court was misled into rejecting the motion for a stay in the way that Mr Oudkerk argues it was, or at all.

Thirdly, I do not accept that BISL would “derive an unfair advantage or impose an unfair detriment [on Mr Wheeler] if not estopped.”. Even assuming that the detriment is said to be the fact that the US proceedings were not stayed he is not a defendant in those proceedings, he is a witness. Even if he were a party, there is also no question of double recovery as against Mr Wheeler or anyone else. Even assuming that the rejection of the motion for a stay is a relevant advantage/disadvantage for present purposes the greater potential unfairness, it seems to me, lies in the risk that Mr Wheeler may escape personal accountability or liability for his actions if BISL’s claim for damages is struck out. As noted above, LLC did not in fact pay the remuneration of BISL employees. If there were an attempt by LLC to claim these sums in the US proceedings, there is a real risk that the point would be taken that these sums were not lost by LLC and therefore cannot be recovered by this entity.

Having considered the individual factors identified by Ginsberg J in the New Hampshire case, it is necessary to stand back and make a broad, merits based, assessment of Mr Oudkerk’s complaint. Having done so I do not consider that the approach of BISL amounts to “playing fast and loose with the court”. What one has, on the one hand, is a somewhat broad brush pleading in the US proceedings which has not yet particularised the losses claimed by LLC on the basis of a range of causes of action against different defendants; and, on the other, a specific claim brought by BISL against Mr Wheeler. The damages claimed in the US proceedings do not clearly include those which are claimed in the English proceedings and so there is no clear inconsistency. Even if they are ultimately claimed by LLC, the rule against double recovery will apply. Assuming that they are not claimed in the US proceedings, Mr Wheeler will not have suffered an unfair detriment: he will simply be held personally accountable for his own part in the team move. Moreover, the alleged inconsistency has not been the basis for any decision adverse to Mr Wheeler or, indeed, anyone else given that the North Carolina Court did not rely on an understanding that LLC was claiming the damages now claimed in the English proceedings.

Even taking into account, also, Mr Oudkerk’s complaint that there was no pre action protocol correspondence in this case, I do not consider that it is manifestly unfair to Mr Wheeler for the claim against him to be made and nor do I consider that it brings the administration of justice into disrepute amongst right-thinking people. I therefore do not accept that Ground 2 establishes an abuse of process. In any event, as I explain further below, a stay would be the proportionate course were Mr Oudkerk right and/or in the event that the same damages were in due course claimed in both sets of proceedings.