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

Mr Oudkerk’s argument was that, in the US proceedings, LLC has taken the position that it had suffered the loss now claimed by BISL in the English proceedings and is claiming in respect of that loss. There is therefore a clear inconsistency between Barings’ position in the US proceedings and its position in the English proceedings. Insofar as he needed to establish that an advantage had been gained as a result, it was that the North Carolina Court had relied on LLC’s position when rejecting Corinthia’s application for a stay on the grounds of forum non conveniens. The Claim is therefore abusive.

Mr Oudkerk principally relied on the following points:

Thus, Mr Oudkerk argued, the Amended Complaint indicates that LLC claims for loss of the remuneration paid to the departing EMEA GPF employees. He also points out that, in Corinthia’s memorandum of law in support of a stay on the grounds of forum non conveniens, dated 12 July 2024, one of the submissions was as follows:

“The Bulk of Barings’ Alleged Damages Would Have Been Suffered in England.

Although Barings—the nominal plaintiff here—may be headquartered in Charlotte, the bulk of the damages allegedly suffered by Barings would presumably be suffered not by Barings but by BISL UK or other Barings affiliates in Europe where the majority of the employees recruited by Corinthia were located. Any loss of confidential information or clients would presumably be suffered by BISL UK or other English affiliates, not Barings. See La Mack…(granting stay where “much of the offending conduct alleged in [the] action … was directed against” a non-North Carolina company).”

In its written submissions in response LLC said:

“Corinthia relies on La Mack to assert that a stay is appropriate where the conduct occurred outside of North Carolina and against a “non-North Carolina company.” In that case, the plaintiffs alleged injuries suffered by a New York company that had a satellite office in North Carolina... Here, by contrast, Barings is headquartered in North Carolina and the Amended Complaint alleges that Barings—not Barings’ U.K. affiliate—suffered the injuries. Indeed, while the Barings Non-US Employees were employed by subsidiaries in the local jurisdiction directly or indirectly wholly-owned by Barings… those former employees’ agreements make clear that the Confidential Information and trade secrets belong to Barings. In the Confidentiality and Non-Interference Restrictions for those Barings Non-US Employees based in the U.K., “Confidential Information” is defined as “[a]ny trade secrets or other confidential information belonging or relating to Barings, its clients, officers, employees, suppliers of products or services.” “Barings,” in turn, is defined as “Barings LLC or any of its Affiliates.”

Thus, argued Mr Oudkerk, LLC was expressly making clear that it, and not BISL, suffered the losses which resulted from the corporate raid. It was claiming those losses and they included damages for the payment of remuneration, including bonuses, to the departing EMEA GPF employees.

Mr Oudkerk also pointed out that, at [35] of his witness statement, Mr Bedford, a solicitor instructed on behalf of BISL, referring to [44] and [81] of the Amended Complaint, says that:

“While the details necessarily differ (as the parties and contracts involved were not the same), the basic structure of the Paragraph 44/81 Counterfactual is the same as that advanced in the English Proceedings: if the individual defendant(s) had not kept the conspiracy hidden, in breach of their duties, then the departing employees would have left sooner (whether as a result of resignation or dismissal) and the bonuses would never have been paid.”

This, Mr Oudkerk said, confirms his analysis. He went on to argue that the claim that the “injuries” alleged in the US proceedings were suffered by LLC and not BISL was bound to have influenced the North Carolina Court in finding that North Carolina was the appropriate forum for the dispute about the team move. BISL’s current position in the English proceedings therefore amounts to “playing fast and loose with the court” and is an abuse of process.