In Marsh Limited v Greensill Bank AG and Dr Frege [2024] EWHC 3068 (Comm), the Commercial Court largely set aside an interim anti-suit injunction made ex parte against Greensill Bank.
The judgment is of wider importance and interest because of its extended consideration of the time-honoured requirement for an applicant for an interim anti-suit injunction to demonstrate to a “high degree of probability” that it has the benefit of a binding exclusive English jurisdiction clause.
Whether Marsh had a binding contract with Greensill Bank for all the period of its engagement gave rise to a disputed issue of fact, on which the Deputy Judge concluded that Marsh did not satisfy the “high degree of probability” test.
The judgment is also notable because of the Federal Court of Australia’s intervention in the form of a judgment concluding that Marsh’s use of documents, disclosed to it by Greensill Bank in Australia, for the purpose of the ex parte application in England had been a contempt of the Australian court ([2024] FCA 1308).
The Deputy Judge found that there had been “a serious and substantial breach” by Marsh of its duty of full and frank disclosure in the English ex parte application. The Deputy Judge, however, said that this was, for reasons of proportionality, not a sufficient reason to set aside the interim injunction.
Michael Fealy KC and Gideon Cohen acted for Greensill Bank and Dr Frege, its insolvency administrator, instructed by Quinn Emanuel Urquhart & Sullivan UK LLP.
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