Marsh Limited & Anor v Greensill Bank AG & Anor

The court continued an interim anti-suit injunction (ASI) under section 37(1) of the Senior Courts Act 1981 restraining Greensill Bank AG from bringing proceedings against Marsh in Australia in relation to the 2018 GBAG Letter of Engagement and related non-contractual obligations. Key legal principles applied were (i) the statutory power to grant ASIs and the usual bases for them (contractual basis founded on an exclusive jurisdiction clause and the vexatious/oppressive basis); (ii) the requirement for an applicant for a without-notice injunction to make full and frank disclosure, linked to the Harman implied undertaking and CPR 31.22; and (iii) the need for an applicant for an interim ASI to show a 'high degree of probability' that an exclusive jurisdiction clause governs the dispute, and the test for 'strong reasons' why the clause should not be enforced.

The court found that Marsh had breached its duty of full and frank disclosure by using documents subject to the Australian 'Harman' implied undertaking without disclosure, but that the breach was not wholly deliberate and did not require the interim ASI to be set aside. On the merits of authority, Marsh had not shown to a high degree of probability that GCUK had actual or ostensible authority to bind GBAG to the GCUK Letters of Engagement, nor that GBAG had ratified those letters; the only binding agreement was the 2018 GBAG Letter of Engagement. GBAG failed to show 'strong reasons' to refuse enforcement of the exclusive jurisdiction clause in the 2018 GBAG LOE. The interim ASI was therefore continued, but to a more limited scope focusing on the 2018 GBAG LOE.

Background and nature of the application

Marsh Limited sought continuation until trial of a without-notice interim anti-suit injunction restraining Greensill Bank AG (in insolvency administration) and its insolvency administrator from bringing proceedings against Marsh in Australia. The application followed Cockerill J's grant of an interim ASI on 30 July 2024 and subsequent litigation before the Federal Court of Australia where Moshinsky J found Marsh in contempt for using documents disclosed in the Australian proceedings (the Harman documents) but ordered that, from his order, Marsh be released from the Harman obligation for those documents prospectively.

Parties and procedural posture

• Claimants: Marsh Limited and Marsh Pty Ltd (second claimant's application not renewed before this judge).
• Defendants: Greensill Bank AG and its Insolvency Administrator.
• Procedural history: interim ASI granted ex parte by Cockerill J (30 July 2024); Australian court (Moshinsky J) held Marsh had breached the Harman undertaking (12 November 2024) but released Marsh from it prospectively; return date heard 20–21 November 2024 before Simon Colton KC (this judgment).

Issues before the court

1. Whether Marsh had breached its duty of full and frank disclosure at the without-notice hearing by relying on Harman documents and, if so, whether the interim ASI should be set aside.
2. Whether Marsh had established to the 'high degree of probability' threshold that GCUK's Letters of Engagement bound GBAG (actual or apparent authority, or ratification), noting GBAG was indisputably bound by a separate 2018 GBAG Letter of Engagement.
3. Whether there were 'strong reasons' for refusing to grant or continue an ASI in respect of the 2018 GBAG LOE (comity, inconvenience, prejudice, the Harman breach and risk of inconsistent judgments).

Court's reasoning and conclusions

• The court accepted there had been a serious breach of the duty of full and frank disclosure. The breach was not wholly innocent but was not deliberate; Marsh and its lawyers had taken steps (including obtaining Australian advice) and showed contrition. The court would not set aside the interim ASI as a penal response, but would take the breach into account when considering costs and the substantive merits.
• On authority, the court concluded Marsh had not shown to a high degree of probability that GCUK had actual or ostensible authority to bind GBAG to the GCUK Letters of Engagement, nor that GBAG had ratified them; the materials more likely pointed against such authority. The only clearly binding agreement was the 2018 GBAG LOE.
• On 'strong reasons', GBAG had not demonstrated reasons sufficient to displace the contractual bargain represented by the exclusive jurisdiction clause in the 2018 GBAG LOE. Foreseeable inconvenience and risks of parallel proceedings did not amount to 'strong reasons' and the Harman breach did not justify refusal to enforce the clause in all the circumstances.

Outcome

The interim anti-suit injunction granted by Cockerill J was continued but to a narrowed scope restraining GBAG from commencing or pursuing claims in Australia against Marsh in relation to the 2018 GBAG Letter of Engagement and related non-contractual obligations; consequential matters including costs were reserved.

The court ordered that the interim anti-suit injunction granted by Cockerill J on 30 July 2024 should be continued, but on a narrowed basis: GBAG is restrained from initiating or bringing any claim against Marsh in Australia in relation to the 2018 GBAG Letter of Engagement and any non-contractual obligations arising out of or in connection with that Engagement. This course was taken despite finding that Marsh had breached its duty of full and frank disclosure by using Harman documents without disclosure, because the breach was not wholly deliberate, Marsh showed contrition, and Marsh had not shown to a high degree of probability that other GCUK Letters of Engagement bound GBAG; GBAG had not established strong reasons to refuse enforcement of the 2018 exclusive jurisdiction clause.

Not an appeal; procedural history included: interim ASI granted ex parte by Cockerill J on 30 July 2024; Federal Court of Australia (Moshinsky J) found Marsh had breached the Harman implied undertaking and declared use of discovered documents in support of the anti-suit application a contempt (judgment 12 November 2024) but released Marsh prospectively from the Harman obligation in relation to the documents; return hearing before Simon Colton KC on 20–21 November 2024 leading to this judgment dated 3 December 2024 (neutral citation [2024] EWHC 3068 (Comm)).