Christopher Loxton (instructed by Wordley Partnership) for the First Appellant
Lady Justice Asplin:
This is an appeal from the order of Mr Lance Ashworth KC, sitting as a deputy High Court judge in the Business and Property Courts, dated 9 May 2022. Amongst other things, the judge granted the Respondent, Mr Patel, an anti-suit injunction preventing the Appellant, Minerva Services Delaware Inc (“MSD”) from taking any further steps in an arbitration in Delaware (the “Delaware Arbitration”) or commencing or pursuing any other claims or proceedings in any jurisdiction, other than England and Wales, arising out of or in connection with a purported Deed of Fiduciary Undertaking dated 7 April 2008 (the “2008 Deed”). He also refused to grant MSD freezing and proprietary injunctions. It is that refusal which is the subject of this appeal.
The background to this matter is rather unusual. It is set out in Mr Ashworth’s judgment, the citation for which is  EWHC 970 (Ch). Reference should be made to his judgment for the full details.
The basis for Mr Patel’s anti-suit injunction against both MSD and Messrs Baxendale-Walker, and Slater, the Second and Third Defendants (who have taken no part in this appeal) was that the Delaware Arbitration was vexatious and oppressive and an abuse of the Court’s process, England and Wales being the proper forum for the dispute.
It was said that the Delaware Arbitration had been commenced at the behest of Mr Baxendale-Walker following a failed application for an injunction by Bay Mining Consultants Ltd (“Bay”) which had been heard by Tipples J on 30 April 2021. Bay had made the application as the assignee from a Belize company known as MSL Services Ltd (“MSL Belize 2018”) of the causes of action arising from the 2008 Deed and a Deed of Fiduciary Declaration of 2021 (together referred to as the “Deeds”). It was claimed that Mr Patel held in the region of £11 million on trust for the principal under those Deeds.
Tipples J refused Bay’s application for an interim freezing injunction. Those proceedings were discontinued in May 2021 and MSD was incorporated in Delaware in June of that year. The rights under the Deeds were then purportedly assigned to MSD and the Delaware Arbitration was commenced against Mr Patel in August 2021. It was not contested before Mr Ashworth that the arbitration was in respect of the same sums claimed to have been advanced to Mr Patel under the Deeds which had been the subject of the proceedings before Tipples J.
Mr Patel challenged the jurisdiction of the arbitrator in Delaware on the basis that there was no enforceable arbitration agreement and before the arbitrator gave any ruling Mr Patel commenced the Part 8 claim seeking the anti-suit injunction in England. On 27 December 2021, the arbitrator held that as there was a dispute as to whether there was an enforceable arbitration clause, a matter which he did not have jurisdiction to determine, he could not proceed.
Thereafter, MSD obtained freezing relief from the Chancery Court in Delaware, on 27 January 2022 on an ex parte basis. That relief was discharged by an order dated 7 February 2022.
Before Mr Ashworth, it was alleged that Mr Patel signed both Deeds under which he acknowledged that monies paid to him by Minerva Services Limited, (“Minerva BVI”) a company incorporated in the British Virgin Islands, or by Baxendale Walker LLP, or any other representative as defined, were held for the benefit of Minerva BVI. It was pleaded that Mr Patel received £9.4 million and that he holds that money on trust for Minerva BVI in accordance with the 2008 Deed. It was said that the monies were intended to be available to meet claims by clients who invested in tax-avoidance schemes that were unsuccessful.
It was also stated that the rights under the Deeds were assigned from Minerva BVI to a Belize company called Minerva Services Limited (“Minerva Belize 2013”). It appears that that company then assigned the rights to MSL Belize 2018. MSL Belize 2018 then assigned the rights to MSD.