Robert Gagliardi v Evolution Capital Management LLC

An anti-suit injunction may protect an employee’s statutory entitlement under Civil Jurisdiction and Judgments Act 1982 section 15 C to be sued only in the permitted United Kingdom courts. The contractual anti-suit injunction framework applies, including the need for a high degree of probability that the statutory right is engaged and the absence of strong reasons against relief.

For jurisdiction under section 15 C(2)(b), the employee need establish only a good arguable case. Habitual work is assessed practically by reference to where the work was actually performed. The Brussels Regulation concept of employee includes a person subject to reporting obligations, company rules and oversight, even where the employee enjoys substantial autonomy in performing specialist duties.

The claimant sought an anti-suit injunction restraining the defendant, a Nevada-based investment adviser, from pursuing proceedings in New York concerning bonus claims arising from the claimant’s employment. The claimant also relied on section 15 C of the Civil Jurisdiction and Judgments Act 1982 to establish that the English court had jurisdiction and that he was entitled to be sued in the appropriate United Kingdom court.

The defendant disputed whether the New York proceedings fell within section 15 C(3), whether the claimant habitually worked in England under section 15 C(2)(b), and whether he was an employee for the purposes of the statutory protective regime. The application also arose after the defendant failed to comply with an undertaking concerning further steps in the New York proceedings.

1. Relief granted. The court held that the claimant had established, to a high degree of probability, that section 15 C applied and that he was presumptively entitled to an anti-suit injunction. There were no strong reasons to refuse prohibitory relief.
2. For the jurisdiction issue, the claimant needed a good arguable case. Applying the approach in Kaefer Aislamientos, the claimant supplied a plausible evidential basis and had the better of the argument on the available material. His habitual place of work was London. The evidence of a possible future relocation to the United States did not displace the fact that he had worked in London for almost a year, including from office accommodation procured for that purpose.
3. The claimant was domiciled in England and Wales under sections 41(2) and 41(6) of the Civil Jurisdiction and Judgments Act 1982. He lived in London, rented a home there, had children living and attending school there, held a United Kingdom residence permit and worked there. The statutory presumption arising from three months’ residence was also relevant.
4. The claimant was an employee for section 15 C purposes. The reasoning in Arcadia Petroleum and Alta Trading concerned an exceptional situation in which senior executives had unusually extensive influence over the employing companies and had effectively written their own contracts. Here, the claimant reported to the defendant’s senior officer, was subject to company rules and policies, owed contractual duties to the company and was subject to oversight. Autonomy over trading strategy and working hours did not prevent subordination.
5. The Court of Appeal’s decisions in Samengo-Turner and Petter were binding. Their approach to protecting the employee’s statutory forum right by anti-suit injunction applied equally to section 15 C, which was intended to retain the relevant Brussels Regulation protections.
6. The court declined to order the defendant to discontinue the New York proceedings. Such a mandatory order would be exceptional at an interim hearing. Instead, the defendant was ordered to co-operate in ensuring that no further steps were taken by the New York court of its own motion and to make a joint application concerning the date for filing the claimant’s answer.

First-instance decision. The judgment refers to earlier Court of Appeal authorities but does not describe an appeal in this litigation.