WWRT Limited v Serhiy Tyshcheniko & Anor

An anti-suit injunction may be granted where foreign proceedings are unconscionable, including where they are vexatious or oppressive or constitute a collateral attack on evidence in English proceedings. The court must proceed with extreme caution, having regard to comity and the foreign court’s connection with the dispute, but there is no additional requirement that an anti-enforcement injunction be granted only in an exceptional case. For final relief, the applicant must establish entitlement to the injunction, rather than merely a high probability of entitlement. Delay is relevant but is assessed by examining its reasons and any prejudice or detrimental reliance. Orders may appropriately extend to a party joined to the foreign proceedings where the orders are proportionate to that party’s role.

WWRT Limited sought urgent final anti-suit and anti-enforcement relief against Serhiy Tyshchenko and Olena Tyshchenko. Mr Tyshchenko had brought proceedings in Ukraine against WWRT’s Ukrainian law expert, Dr Tsiura, seeking to compel him to refute opinions expressed in expert reports served in the English proceedings. The Ukrainian first-instance and appellate courts upheld that claim, and a further appeal was listed before the Ukrainian Supreme Court.

The application raised whether the Ukrainian proceedings were vexatious or oppressive, whether the English court could intervene despite the Ukrainian subject matter, whether delay defeated relief, and whether orders should be made against Mrs Tyshchenko as a third party.

1. Relief granted. The court granted a final anti-suit injunction. Mr Tyshchenko was required to apply to withdraw his Ukrainian claim and take the necessary steps to secure its withdrawal. The defendants were also prohibited from enforcing or relying on judgments or orders made in that claim.
2. The power under s 37(1) of the Senior Courts Act 1981 extends to anti-suit injunctions where continuation of foreign proceedings is unconscionable, including where proceedings are vexatious or oppressive. The court must have personal jurisdiction over the respondent and must exercise the jurisdiction with extreme caution, having regard to judicial comity and the foreign court’s connection with the parties and subject matter.
3. The Ukrainian claim was a direct and undisguised collateral attack on evidence given in the English proceedings. Its sole purpose was to compel the expert to change or recant evidence which he honestly held. That made the proceedings vexatious and oppressive and constituted an abuse interfering with the due process and integrity of the English trial. The policy protecting adverse experts from suit also supported relief.
4. Issues of Ukrainian law are issues of fact, albeit a special kind of fact, which may be determined by the English court on the basis of relevant materials and expert evidence. The defendants retained a full opportunity to challenge Dr Tsiura’s evidence at trial by cross-examination, submissions and contrary expert evidence.
5. An anti-enforcement injunction is rare because its conditions will rarely be met, not because an additional exceptional-case requirement applies. It is a serious remedy, but there is no absolute bar to restraining enforcement of a foreign judgment.
6. Delay is a relevant factor, not an absolute bar. The court must examine the reasons for delay and prejudice or detrimental reliance. Here, there was no evidence of enforcement steps, and the delay was understandable while the applicant expected the Ukrainian claim to fail.
7. For final relief, the applicant had to establish that it was entitled to the injunction. No undertaking in damages was required. The proportionate orders against Mrs Tyshchenko were justified by her joinder and required cooperation and non-obstruction only.