Marsh Limited & Anor v Greensill Bank AG & Anor

An interim anti-suit injunction may be continued where the applicant establishes, to a high degree of probability, a binding exclusive jurisdiction agreement covering the threatened foreign proceedings and the defendant cannot show strong reasons against relief. In this context, the threshold will usually approach the summary judgment standard, although it is not an inflexible rule. The court may have regard to evidence reasonably expected to be available at trial.

A serious breach of the duty of full and frank disclosure does not automatically require discharge. The court retains a sparingly exercised discretion to continue or renew relief where the interests of justice require it, weighing culpability, the importance of the non-disclosed matter, any advantage obtained, and proportionality.

Marsh Limited sought continuation of an interim anti-suit injunction restraining Greensill Bank AG and its insolvency administrator from bringing claims against it in Australia. The injunction had been granted without notice by Cockerill J.

Greensill contended that Marsh had failed to disclose that it had reviewed and relied on documents disclosed in the Australian proceedings in breach of the Harman obligation. It also disputed that GCUK had authority to bind Greensill to earlier engagement letters, and relied on strong reasons based on comity, overlapping proceedings, and the risk of inconsistent findings.

The court therefore considered the effect of the disclosure breach, the authority and ratification issues, and whether the exclusive jurisdiction clause in the 2018 engagement between Greensill and Marsh should be enforced.

1. Disclosure breach. Marsh had committed a serious and substantial breach of its duty of full and frank disclosure by failing to disclose its use of documents which the Australian court had found were subject to the Harman obligation. The breach was not wholly innocent, because the conclusion that there was no credible argument to the contrary was over-confident. Nevertheless, the court retained a discretion to continue or renew the injunction. The breach was not deliberate, Marsh and its lawyers had otherwise taken substantial care, apologies had been given, and discharge would expose Marsh to potentially very substantial Australian statutory claims. The interests of justice therefore favoured continuation, with the breach reflected in costs.
2. Threshold. An applicant for an interim anti-suit injunction must establish to a high degree of probability that a jurisdiction agreement governs the dispute. The threshold is usually close to the summary judgment standard: the court should not normally decide in the applicant’s favour unless the defendant would have no real prospect of defeating the application at trial. The court may consider evidence reasonably expected to be available at trial. A lower threshold may be appropriate where relief merely holds the ring, but this case was practically determinative and was not presented on that basis.
3. Authority. Marsh failed to establish to that standard that GCUK had actual or ostensible authority to bind Greensill to the GCUK engagement letters, or that Greensill had ratified them. The evidence instead suggested that the companies operated at arm’s length, Greensill had limited knowledge of the letters, and the separate 2018 Greensill engagement was inconsistent with prior contractual incorporation through GCUK.
4. 2018 engagement. Greensill accepted that it was bound by the 2018 engagement letter, which contained an exclusive English jurisdiction clause. No strong reasons justified refusing to enforce it. Foreseeable inconvenience, overlapping proceedings, inconsistent findings, comity, and the possibility that Australian statutory claims might yield greater recovery did not suffice. The interim anti-suit injunction was accordingly continued on the narrower basis of restraining Australian claims arising from the 2018 engagement and connected non-contractual obligations.

First instance decision. The judgment itself records that the original interim anti-suit injunction was granted by Cockerill J on 30 July 2024. The present court continued it on a narrower basis.