Benfield Holdings Ltd & Ors v Richardson & Ors

An English court may restrain a party from pursuing foreign proceedings or procedural steps where that conduct is unconscionable because it is vexatious, oppressive or interferes with the due process of the English court. The jurisdiction must be exercised cautiously and with regard to the impact on the foreign court. Relevant factors include whether the English proceedings are the lead proceedings, whether an expedited trial is imminent, whether the witnesses will give evidence at that trial, whether English disclosure and witness-statement procedures provide adequate evidence, whether the foreign evidence is genuinely needed, and whether the proposed depositions would create one-sided pre-trial cross-examination or disrupt trial preparation.

The claimants brought English proceedings concerning alleged contractual, fiduciary and tortious wrongdoing arising from the movement of employees from the Benfield group to the Aon group. Related proceedings concerning the same dispute were pending in New York. Aon sought an interim injunction restraining depositions in New York of four Aon executives based in England until the expedited English liability trial.

A without-notice injunction was granted. The claimants applied to set it aside. The central issue was whether pursuing the depositions before the English trial constituted unconscionable conduct warranting a limited anti-suit or anti-procedural injunction.

1. Application dismissed. The injunction restraining the claimants from seeking the depositions of four London-based Aon executives before the English trial was continued, together with Aon’s cross-undertakings.
2. The jurisdiction was founded on unconscionable conduct, including conduct which was vexatious, oppressive or interfered with the due process of the English court. It had to be exercised with caution because an injunction directed to a party could affect the procedures of the foreign court. The court considered South Carolina Insurance Co v A.M.Z.P. [1987] AC 24 and Glencore International v Exeter Shipping [2002] 2 All ER (Comm) 1.
3. The material considerations pointed decisively towards restraint. The English proceedings were the lead proceedings and England was the natural forum. The liability trial was expedited and imminent. The four witnesses were expected to provide witness statements and give oral evidence at that trial. English disclosure and witness-statement procedures would shortly identify the evidence on which they would rely. The claimants could seek permission to use that evidence in New York if a genuine need arose.
4. There was no compelling or urgent reason for the depositions. Their proposed use would create a real forensic unfairness by permitting one-sided pre-trial cross-examination of witnesses who were likely to be called by the opposing party, while disrupting preparation for the English trial. Sealing the depositions or restricting their use would not cure that unfairness.
5. The reasoning in Omega Group Holdings Ltd v Kozeny [2002] CLC 132 supported restraint where foreign depositions would result in unwarranted double cross-examination or risk interference with the English trial. The injunction protected the fairness and equality secured by English procedure, without restraining the New York proceedings generally.

Not stated in the judgment.