On 11 April 2022 Joanna Smith J handed down judgment in BRG NOAL GP S.à r.l. & Anor v (1) Stefan Kowski & (2) Bastian Lueken, in which the Claimant Luxembourg entities sought interim prohibitory and mandatory injunctions requiring the Defendants to halt proceedings commenced by companies in Luxembourg in which they are indirect shareholders.
The Defendants contended that Luxembourg was the appropriate forum for the dispute, and that the English proceedings should accordingly be stayed. The Judge agreed, and also dismissed the Claimants’ alternative application under section 25 of the Civil Jurisdiction and Judgments Act 1982 for an injunction in support of proceedings they said they would bring in Luxembourg, on the grounds that (1) it was not open to the Claimants to pursue a section 25 application in support of putative foreign proceedings while continuing the English proceedings, and (2) it would be inexpedient to grant section 25 relief in any event because it would conflict with the progress of the Luxembourg proceedings and could create judicial disharmony.
The Court also addressed (obiter) the correct test to be applied to the application for interim relief, which was essentially an anti-suit injunction. The application was based on undertakings given by the Defendants. The Defendants contended that the undertakings were invalid and unenforceable (and denied breaching them in any event). The Court considered a number of first instance and Court of Appeal authorities, including the decision of Hoffmann J in Apple Corps Ltd v Apple Computer Inc [1992] RPC 70, and agreed with the Defendants that the test for an injunction was whether there was a “high probability” that the undertakings were valid and enforceable, rather than whether there was a serious issue to be tried. That test of high probability was not met.
Ben Strong QC and Patricia Burns, instructed by Humphries Kerstetter LLP, acted for the First Defendant. Daniel Hubbard and Sabrina Nanchahal, instructed by Keystone Law, acted for the Second Defendant.
The judgment is availalable here.