Barclays Bank PLC v PJSC Sovcombank & Anor

Where proceedings are brought in breach of an exclusive English jurisdiction clause, the court will ordinarily grant an anti-suit injunction unless strong reasons justify withholding relief. An anti-enforcement injunction does not require a separate showing of exceptionality, although such relief will generally remain rare. It may be granted before judgment where an anti-suit injunction alone may be ineffective, particularly where the foreign proceedings may continue or judgment may be entered despite discontinuance. Pre-judgment relief is ordinarily less intrusive to comity than post-judgment relief. Negative declaratory relief is available where it serves a useful purpose. Where sanctions law makes payment unlawful and provides a defence for non-performance based on a reasonable belief that payment is prohibited, the obligor is not liable for breach of the underlying contract.

Barclays sought final anti-suit and anti-enforcement injunctions, together with declaratory relief, in relation to Russian proceedings brought by PJSC Sovcombank and its assignee, AIS. The Russian claim concerned alleged non-payment under an English-law syndicated loan agreement containing an exclusive English jurisdiction clause.

An interim anti-suit injunction had previously been granted and renewed by HHJ Pelling KC in [2024] EWHC 834 (Comm). The defendants did not participate substantively in the final application. The issues were whether the Russian proceedings breached the jurisdiction clause, whether anti-enforcement relief was appropriate before any foreign judgment, and whether English sanctions law prevented Barclays from being liable for the non-payment.

1. Anti-suit injunction. The Russian claim fell within the exclusive jurisdiction clause. AIS, enforcing assigned rights, was in no better position than Sovcombank. The proceedings therefore breached the contractual bargain. Applying the ordinary approach of the English courts, injunctive relief was granted because no strong reasons for withholding it were shown. There had been no material delay or lack of clean hands, and the evidence did not establish that sanctions made English representation impracticable.
2. Anti-enforcement injunction. SAS Institute Inc v World Programming Ltd established that there was no separate jurisdictional requirement of exceptionality beyond the basis for anti-suit relief, although anti-enforcement relief would usually be rare. The circumstances were materially comparable to Deutsche Bank v RusChemAlliance LLC, because the Russian proceedings might continue or judgment might be entered even if discontinuance were sought. The application was made before judgment. That distinction reduced the intrusion into comity, avoided further foreign litigation expense and delay, and avoided interference with a judgment creditor’s property right. The anti-enforcement injunction was therefore granted.
3. Declaration and sanctions. Negative declaratory relief was appropriate because it served a useful purpose and concerned the effect of sanctions law in the jurisdiction chosen by the parties. The court concluded that the relevant sanctions regulations prohibited Barclays from making the payments and that payment would constitute a criminal offence under SAMLA. Section 44(1) supplied a defence where non-performance resulted from a reasonable belief that it was required by the regulations. Barclays had therefore not breached the Facility, and AIS could acquire no better damages claim than Sovcombank. The amended declaration was granted.
4. Costs. Barclays had succeeded. Costs followed the event and were awarded on the indemnity basis, subject to a limited reduction of profit costs from £97,000 to £90,000 and a corresponding VAT adjustment.

The judgment itself records an earlier without-notice anti-suit injunction and its renewal by HHJ Pelling KC in [2024] EWHC 834 (Comm). The present court granted final relief.