Case Digest No. 2 · Commercial litigation
Anti-suit injunctions, disclosure and proportionality
Marsh Ltd v Greensill Bank AG [2024] EWHC 3068 (Comm)
The High Court considered the threshold for interim anti-suit relief, the applicant’s duty of full and frank disclosure and whether the injunction should continue in a narrower form.
High Court (Commercial Court)
[2024] EWHC 3068 (Comm)
February 2025
Decision at a glance
The question, answer and consequence.
- Legal question
- The central issue was anti-suit injunctions, disclosure and proportionality.
- Court's answer
- The High Court considered the threshold for interim anti-suit relief, the applicant’s duty of full and frank disclosure and whether the injunction should continue in a narrower form.
- Practical consequence
- The judgment shows how the court balances comity, procedural fairness and proportionality when anti-suit relief overlaps with disclosure obligations. It assists parties deciding whether foreign proceedings justify urgent English relief and what evidential burden that application carries.
Factual background
Marsh Ltd provided insurance booking and other services to Greensill Capital (UK) Ltd (GCUK) and its sister company, and later subsidiary, Greensill Bank AG (GBAG). This occurred under a series of Letters of Engagement, addressed to GCUK and signed by an officer of GCUK, incorporating standard form Terms of Engagement (containing the clauses seen to the right). There was also a separate Letter of Engagement concluded by GBAG with Marsh Ltd, which was materially identical to the other Letters of Engagement concluded, save as regards remuneration. Following the collapse of the Greensill Group, GBAG communicated their intention to join Marsh Ltd to the proceedings before the Federal Court of Australia. Marsh Ltd, considering that GBAG was bound by exclusive jurisdiction clauses and fearing that this would expose it to liability not covered by the contractual limitation, decided that the right course was to obtain an interim anti-suit injunction from the English court.
Issue
The central issue was anti-suit injunctions, disclosure and proportionality.
Procedural history and reasoning
Confirmed the role of proportionality in determining whether a party’s breach of its duty of full and frank disclosure is sufficient to set aside an interim anti-suit injunction. 2. It was in the interests of justice to allow the interim anti-suit injunction to continue on a more limited basis to restrain Greensill Bank AG from taking any steps to bring a claim against Marsh Ltd in Australia. 3. MARSH LTD’S WITHOUT NOTICE APPLICATION FOR AN INTERIM ANTI-SUIT INJUNCTION Due to concerns that giving full notice to GBAG may result in GBAG obtaining an anti-anti-suit injunction from the Australian court first, Marsh Ltd decided to seek one on very short notice to GBAG. Marsh Ltd was aware that, as a result, it would have the duties of full and frank disclosure. In order to comply with what were understood to be Marsh Ltd’s duties, in preparation for the interim application, Marsh Ltd’s lawyers reviewed over 14,000 documents, including documents which had been disclosed to Marsh by GBAG in the Australian proceedings.
Following the without notice application, Cockerill J granted the interim anti-suit injunction in favour of Marsh Ltd, restraining GBAG from taking any steps to initiate or bring a claim against Marsh in Australia. GBAG’S APPLICATION IN AUSTRALIAN PROCEEDINGS IN RELATION TO MARSH LTD’S BREACH OF THE HARMAN OBLIGATION After the interim anti-suit injunction had been granted, GBAG brought an application in the Australian proceedings contending that, in obtaining the without notice interim anti- suit injunction, Marsh Ltd had breached the obligation not to make collateral use of documents disclosed in those proceedings. In other words, Marsh Ltd breached the ‘implied undertaking’ known as the Harman obligation. Following a hearing, Moshinsky J, sitting in the Federal Court of Australia, concluded that Marsh Ltd’s lawyers had breached the Harman obligation ‘beyond reasonable doubt’, constituting a contempt of the Australian court.
PARTIES’ AGREED SUMMARY OF LAW APPLICABLE TO ANTI-SUIT INJUNCTIONS (as set out in paragraph 22 of Mr Simon Colton KC’s judgment) QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm) (Foxton J at [10]): (i) The court’s power to grant an ASI to restrain foreign proceeedings, when brought or threatened to be brought in breach of a binding agreement to refer disputes to arbitration, is derived from section 37(1) of the Senior Courts Act 1981, and it will do so when it is ‘JUST AND CONVENIENT’. (ii) The touchstone is WHAT THE ENDS OF JUSTICE REQUIRE. (iii) The jurisdiction to grant an ASI should be EXERCISED WITH CAUTION. (iv) The injunction applicant must establish with a ‘HIGH DEGREE OF PROBABILITY’ that there is an arbitration or jurisdiction agreement which governs the dispute in question. (v) The court will ordinarily exercise its discretion to restrain the pursuit of proceedings brought in breach of a forum clause unless the defendant can show STRONG REASONS to refuse the relief (relying on Aggeliki Charis Compania Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Ll Rep 87). (vi) The DEFENDANT BEARS THE BURDEN of proving there are strong reasons.
Decision and key points
The High Court considered the threshold for interim anti-suit relief, the applicant’s duty of full and frank disclosure and whether the injunction should continue in a narrower form.
- Clarified that the ‘high degree of probability’ threshold for interim anti-suit injunctions will usually mean something close to the standard set by the summary judgment test.
- Confirmed the role of proportionality in determining whether a party’s breach of its duty of full and frank disclosure is sufficient to set aside an interim anti-suit injunction.
- It was in the interests of justice to allow the interim anti-suit injunction to continue on a more limited basis to restrain Greensill Bank AG from taking any steps to bring a claim against Marsh Ltd in Australia.
Why this decision matters
The judgment shows how the court balances comity, procedural fairness and proportionality when anti-suit relief overlaps with disclosure obligations. It assists parties deciding whether foreign proceedings justify urgent English relief and what evidential burden that application carries.
Particularly relevant to: Commercial litigators, insurers, financial institutions and cross-border legal teams.