Anti-suit injunctions and cross-border insolvency

Anti-suit injunctions and cross-border insolvency

Benn Richards, solicitor in the Lexis®PSL Restructuring & Insolvency team looks when the English courts grant an anti-suit injunction where there are cross-border insolvency applications in other jurisdictions.

This was considered in the case of Kemsley v Barclays Bank Plc [2013] All ER (D) 169 (May) where the Chancery Division dismissed the applicant bankrupt's applicationfor an anti-suit injunction in respect of proceedings brought by the respondent bank in the United States of America. The court held, among other things, that it could not be regarded as oppressive or unfair or in any way improper for the question whether the bank should be allowed to maintain its action in the US on an English debt or whether those proceedings should be stayed or dismissed on the basis that the applicant had become discharged from his debts under the British statute, or indeed whether there should be any restriction on enforcement on post-discharge assets, to be determined by the New York court.

What were the key facts of the case?

The case of Kemsley v Barclays Bank plc looks at when it is appropriate to grant an anti-suit injunction to stop proceedings in another jurisdiction (in this case the USA), where the applicant (the bankrupt, K) was subject to English bankruptcy proceedings. This case very much turned on its facts and K's applicationwas refused.

As noted in the judgment of Mr Justice Roth, until 2008 K was a very wealthy man. Due to this, the respondent, Barclays Bank plc, lent him £5 million by way of an unsecured loan, which was repayable after a year but this period was extended. In 2009, K's network of businesses entered administration and K suffered financial difficulties. Because of this, a number of creditors issued proceedings against K (including one for £6.8 million and HMRC for £3 million, which lead to HMRC presenting a bankruptcy petition against K). K then petitioned for his own bankruptcy in January 2012 in the UK, and was

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