Apollo XI Limited v Nexedge Markets Limited

A defendant seeking compensation under a cross-undertaking after a freezing injunction has been discharged is ordinarily entitled to an inquiry. There is a strong rebuttable presumption in favour of enforcement, and the party resisting permission must establish special circumstances, such as inequitable conduct, material change, or absence of any recoverable loss. At the permission stage the court asks only whether there is credible evidence, or a realistic prospect, that the order was an effective cause of loss. It should not conduct a mini-trial, resolve contested credibility issues, or undertake protracted forensic analysis. Loss need not be caused exclusively by the injunction; concurrent causes may support recovery. If permission is granted, the inquiry may be case-managed and heard with the substantive proceedings.

Nexedge applied to enforce Apollo’s cross-undertaking in damages given for a freezing injunction. Saini J discharged the injunction on 17 June 2025, holding that it had been wrongly obtained following serious failures of full and frank disclosure, and finding no good arguable case, no risk of dissipation and no basis to continue the order: [2025] EWHC 1488 (KB). Nexedge claimed losses including delay and ultimate failure of its variation of permission application to the FCA, reputational damage, business disruption and lost management time. Apollo argued that Nexedge had suffered no recoverable loss and that the underlying litigation, rather than the injunction, was the true cause. The central issue was whether permission for an inquiry should be granted before trial and how causation and the evidence should be approached at that stage.

1. Disposition and structure. The court granted permission to enforce the cross-undertaking and ordered an inquiry into whether, and in what amount, the freezing injunction had caused loss. An application of this kind has two stages, identified in Balkanbank v Taher [1995] 2 All ER 904 (CA): first, whether the undertaking should be enforced; and secondly, what loss was suffered, whether it was caused by the order and whether it was too remote. Only the first stage was before the court.
2. Presumption and burden. There is a strong rebuttable presumption in favour of enforcement. Under Lunn Poly Ltd v Liverpool & Lancashire Properties Ltd [2006] EWCA Civ 30, permission will ordinarily be granted unless special circumstances exist, including inequitable conduct, a material change in circumstances or the absence of damages. Apollo bore the burden of persuading the court that such circumstances existed.
3. Permission-stage threshold. The no-loss category is intended to prevent a plainly pointless inquiry, not to create a mini-trial. The court required only credible evidence, or a realistic prospect, that the injunction caused loss. It should not conduct protracted forensic analysis, decide contested credibility issues or require the applicant to present its best evidence at this stage. The approach in Mex Group Worldwide Ltd v Ford [2026] EWHC 629 (KB), Yukong Line Ltd v Rendsburg Investment Corp [2001] 2 Lloyd’s Rep. 113 (CA) and Easyair Ltd (trading as OPENAIR) v Opal Telecom Ltd [2009] EWHC 339 (Ch) supported that conclusion.
4. Causation and loss. The injunction need only be an effective cause and need not be the sole cause. Concurrent causation with the substantive litigation can suffice, applying SCF Tankers Ltd v Privalov [2017] EWCA Civ 1877 and Alta Trading UK Ltd v Bosworth [2021] EWHC 1126 (Comm). It was also well arguable that Apollo could not rely on its own allegedly wrongful conduct to break the chain of causation, following the approach in Alta Trading UK Ltd & Ors v Bosworth & Ors [2025] EWHC 2724 (Comm). The court was satisfied that credible evidence supported each claimed head, including business disruption, reputational damage and lost management time. The possible recoverability of such heads was supported by Hone v Abbey Forwarding Ltd [2014] EWCA Civ 711 and Al-Rawas v Pegasus Energy Ltd [2008] EWHC 617 (QB), although quantum and ultimate causation remained for the inquiry.
5. Directions. The inquiry was to be case-managed and heard with the substantive claims and counterclaims. Directions were left for the case management conference on 9 September 2026, consistently with the options identified in Cheltenham & Gloucester Building Society v Ricketts [1993] 4 All ER 276 (CA).

This was a first-instance application. The freezing injunction had previously been discharged by Saini J on 17 June 2025 in [2025] EWHC 1488 (KB) . The present court granted permission to enforce the cross-undertaking and directed that the inquiry be case-managed with the substantive proceedings.