Tanner Courier & Anor v HKA Global LLC & Ors

This is the judgment of the court.

To assist the parties and the public to follow the main lines of the court’s reasoning, the text is divided into 11 sections, as set out in the table of contents above. The table is hyperlinked to aid swift navigation.

This is an application to discharge and set aside two orders of Master Eastman (“the Judge”). While there are further connected applications, the set aside is the prime focus of contestation before me.

The first order was made on 9 July 2025. The Judge gave permission to serve out in the United States. The second order was made on 6 September 2025. The Judge gave permission for alternative service.

The applicants are Christopher Beirise and Accuracy US LLC (“Accuracy US”). They are represented by Mr Mountford of counsel. The respondent is HKA Group Holdings Limited (“HKA UK”) and is represented by Mr Solomon KC and Ms Davies of counsel. The court is grateful to all counsel for the high quality of their submissions and case presentation.

The respondent alleges that Mr Beirise and the two claimants in the main action, Messrs Courrier and Pasco (Messrs Beirise, Courrier and Pasco together being “the partners”), combined with one another and with Accuracy US to conspire to lure members of the respondent’s staff to a new competitor company called Accuracy US. This is said to be in breach of a legal agreement between the respondent and the partners called the “nominee deed”. That instrument has an exclusive jurisdiction clause in favour of the English court and a clause nominating English law as the choice of law. In accordance with this agreement, the two claimants Messrs Courrier and Pasco brought proceedings in the English court for negative declaratory relief to establish that they are not liable for breaching a non-compete covenant in the nominee deed. In response, the respondent applied to serve the applicants out of jurisdiction in the United States. The Judge granted permission to serve out and then permission for alternative service. It is those orders that the applicants now apply to discharge and set aside. That is the essence of the facts.

This rudimentary introduction inevitably needs fleshing out and I treat the background facts in more detail after providing more details of the parties.

The partners Messrs Courrier and Pasco live and work in the United States. Tanner Courrier and Hansell Pasco were employees of a corporate entity called The Kenrich Group LLC. They were employed pursuant to US employment contracts: for Tanner Courrier, by the terms of an offer letter of 31 March 2009 and a confidentiality and arbitration agreement dated 14 May 2009; for Hansell Pasco, by the terms of an offer letter of 9 December 2014 and a confidentiality and arbitration agreement dated 2 January 2015.

Mr Beirise is a delay and quantum expert based in Las Vegas, Nevada. He held the position of partner upon HKA Global's acquisition of The Kenrich Group LLC. He is a defendant in the US Proceedings.

He lives and works in the USA and held a partner position upon HKA Global’s acquisition of Kenrich. He entered into (1) an Executive Employment Agreement with Kenrich dated 16 July 2019 containing restrictive covenants governed by Delaware law and subject to a JAMS arbitration jurisdiction clause; (2) a Confidentiality, Non-Competition and Non-Solicitation Agreement (the “RCA” – this will be an agreement of significance later) also dated 16 July 2019. The agreements (a) are governed by Delaware law and provide for any dispute to be resolved by JAMS arbitration; and (b) provide that the parties consent to the jurisdiction of any court of competent jurisdiction located in the State of Delaware.

Accuracy US is a Delaware limited liability company and wholly owned subsidiary of Accuracy US Holding LLC, in turn a wholly owned subsidiary of Accuracy SAS (a French entity). Accuracy US provides consultancy services in litigation, arbitration, and transactions around construction, energy and infrastructure disputes. It was incorporated in May 2024. It is a defendant in the US Proceedings.

HKA Global LLC (“HKA Global”) is a Delaware limited liability company with a principal place of business in Philadelphia, Pennsylvania, USA. It is a consultancy business providing risk mitigation, dispute resolution, expert witness and litigation support services. It was the former employer of the Claimants and the Third Party and part of the HKA Group. It is a claimant in the US Proceedings.

HKA Group Holdings Limited (“HKA UK”) is a private limited company incorporated in England and Wales on 23 May 2022, with registered offices in Warrington, England. It is part of the HKA Group.

In July 2019, HKA Global acquired Kenrich under a stock purchase agreement. Messrs Courrier and Pasco became employees of HKA Global. Mr Beirise held the position of partner upon HKA Global’s acquisition of Kenrich.

On 16 July 2019, Mr Beirise entered into an executive employment agreement which contained obligations in favour of The Kenrich Group and HKA Global. Part of his employment agreement included a Confidentiality, Non-Competition and Non-Solicitation Agreement (called the Restrictive Covenant Agreement or “RCA”), governed by Delaware law. Mr Beirise executed the RCA on 16 July 2019 “as a condition [to his] continued work” with The Kenrich Group and HKA Global.

The RCA imposed post-employment restrictions on Mr Beirise. A non-competition provision prohibits him for a period of 12 months after termination of his employment with HKA Global, from “directly or indirectly . . . engag[ing] in . . . or undertak[ing] any planning to engage in . . . any portion of the business” conducted by any parent or subsidiary of HKA Global within the United States.

A non-solicitation provision prohibits Mr Beirise, for twelve months post-employment, from “directly or indirectly . . . solicit[ing] or encourag[ing]” any employee to leave HKA Global or its affiliates. Mr Beirise agreed in the RCA that these restrictions were reasonable in scope, duration, and geography and necessary to protect HKA Global’s legitimate business interests.

Therefore, from July 2019, Christopher Beirise, Hansell Pasco, and Tanner Courrier were employed by HKA Global.

In May 2020, HKA Global promoted Messrs Courrier and Pasco to the position of partner.

In May 2022, HKA Global was acquired by private equity firm PAI Partners.

On 9 August 2022, and as a condition of remaining employed as partners of HKA Global, Messrs Courrier and Pasco agreed to adhere to a nominee deed by signing a deed of adherence of the same date.

The nominee deed is subject to English law and contains an exclusive jurisdiction clause in favour of the English court. The nominee deed includes its own set of restrictive covenants, including non-competition and employee non-solicitation provisions.

A deed of adherence was similarly executed in respect of Mr Beirise, adhering him to the nominee deed.

The nominee deed states at clause 1.2:

“1.2.

Each of the Participants severally covenants with the Company (for itself and for each other Group member) and (as a separate undertaking) with the Investor that he shall not at any time during his Undertaking Period, unless otherwise agreed by the Company (with Investor Majority Consent):

1.2.1.

carry on or be employed by, engaged by or economically interested in any business in: (i) the United Kingdom; (ii) the United States; and (iii) any other geographic area in which any business of any Group member is carried on, was carried on in the 12 month period immediately prior to the Relevant Date or which the Participant is aware is planned to be carried on as at the Relevant Date, which is or would be in competition with any part of the Business, except: (i) as a passive investor in not more than three per cent of any class of securities quoted on a public securities market or in a Fund; or (ii) with Investor Majority Consent; or

1.2.2.

canvass, solicit or entice away (or attempt to do any of the foregoing) any person, firm or company who or which is or was (in the 12 month period immediately prior to the Relevant Date) a customer, prospective customer or supplier of a Group member where the reasonably likely outcome of such canvassing, soliciting or approaching is a reduction in the scope of the dealings between the relevant customer, prospective customer or supplier and the relevant Group member (for the purposes of this paragraph 1.2.2, “prospective customer” means any person, firm or company who that Participant is aware has been in negotiations with any Group member with a view to purchasing goods or services from a Group member); or

1.2.3.

(i) offer employment to, enter into a contract for the services of or attempt to entice away from any Group member, any individual who is or was (in the 12 month period immediately prior to the Relevant Date) a fee earning or other senior employee of any Group member at any time during the period of his Appointment; or (ii) procure or facilitate the making of any such offer or attempt by any other person, provided always that it is agreed that the placing of a general recruitment advert in a publication or on a website which is not intended to target any such particular person (and without any prior solicitation of such person) will not be treated as a breach of this paragraph 1.2.3; or

1.2.4.

make any statement which the Participant knows could reasonably be expected to materially prejudice or bring into disrepute the business reputation of any Group member.

1.3.

For the purposes of this paragraph 1, the “Relevant Date” shall mean the date on which the Participant ceases to be an employee or director of, or consultant or provider of services to, a Group member.

1.4.

The covenants in this paragraph 1 are intended for the benefit of the Investor, the Company and the Group and apply to actions carried out by a Participant in any capacity and whether directly or indirectly, as principal or as agent, on the Participant’s own behalf, on behalf of any other person or jointly with any other person”.

Although the “relevant date” in the nominee deed is connected to termination of employment, the substance of the agreement remains an investment agreement and not an employment one. This is despite the investment agreement arising in the context of the acquisition by PAI Partners, as explained by para 8.6 of the particulars of claim:

“8.6

Upon HKA being acquired by PAI Partners in May 2022, and as part of remaining employed and/or not being demoted, each Claimant was expected to adhere to the Nominee Deed dated 9 August 2022 by agreeing to the Deed of Adherence also dated 9 August 2022 executed on their behalf by various agents of the Defendants.”

A non-solicitation clause prohibits the partners, for 18 months after their departure, from “offer[ing] employment to . . . or attempt[ing] to entice away” any senior employee from any “Group member.” The Nominee Deed is governed by English law and contains a forum selection clause requiring disputes over its covenants to be resolved “exclusively in England”.

On 14 June 2024, the partners announced their proposed resignation from HKA Global to join Accuracy US, a competitor of HKA Global.

To facilitate the partners’ transition and avoid disruption to clients, the parties entered into the TSA on 6 August 2024. The TSA provides the partners with limited or partial release from the terms of the pre-existing covenants in the nominee deed. That release depended on conditions being met, including compliance with the nominee deed non-poach covenant (its clause 1.2).

The TSA is governed by Delaware law. Through it, HKA Global agreed that the partners could work for Accuracy US, despite the competition, subject to fee-sharing arrangements. This “resolved” the dispute, but on limited terms and strict conditions. TSA clause 7.1 states:

“Restrictive covenants

7.1

HKA agrees to release the Partners from any contractual post-termination restrictions to the minimum extent reasonably necessary to enable the Partners to be employed as employees by Accuracy US with effect from 12 August 2024; and to enable the Partners to perform services for the relevant Clients or clients as stipulated in clauses 5 and 6, in each case subject to the conditions …”

Clause 7.3 provides that nothing in the TSA precludes, prohibits or prevents entities in the HKA Group (which includes both HKA Global and HKA UK) from pursuing a claim against the partners or their new employer in respect of breaches of the TSA or the nominee deed (save as released), or prevents the partners from pursuing a claim against HKA entities for breaches of the TSA or nominee deed.

The TSA includes a warranty at clause 8.1. This provides that the signatory (partner) “confirms” (warrants) that they are not unaware of any facts or circumstances that might reasonably be considered to amount to a breach of, inter alia, the nominee deed.

It is alleged by the respondent in its counterclaim that before and during the resignation process, the partners set about recruiting HKA employees to join them at Accuracy US. It is alleged against them that this activity is in contravention of clause 8.1 of the TSA since the partners represented that, as of the signing date, they were aware of no facts that “might reasonably be considered to amount to a breach by . . . the Partners of the Service Agreements or Investment Documents.” The “Service Agreements” include the RCA and the “Investment Documents” which in turn include the nominee deed.

In the English court, the respondent (as Part 20 claimant) alleges breach of the nominee deed in a precise way. It is set out in the letter before action sent to Mr Beirise dated 16 August 2024:

“Breach

You have recently left the Group, together with Hansell Pasco and Tanner Courrier, in order to join and in effect establish Accuracy US. The HKA Group has significant concerns about the manner in which this was done, in particular that it was done in concert with one another, and that you intended to breach the non-compete provisions in the Investment Documents by commencing work for Accuracy US. Although this dispute was resolved by way of the Settlement Agreement, as noted above, this explicitly did not release you from your other obligations under the Investment Documents, including the non-poaching provision.

As noted above, you and Messrs Pasco and Courrier are essentially establishing Accuracy US from scratch. We therefore understand that you are trying to recruit a wider team. It has come to the HKA Group's attention that you are in the process of trying to recruit several employees from the HKA Group to join you and Messrs Pasco and Courrier at Accuracy US (and in concert with those persons). These individuals plainly fall within the scope of the non-poaching restriction within the Investment Documents, and your efforts to entice them away from HKA Global and, we infer, offer them employment on behalf of Accuracy amount to clear breaches of this restriction.”

Due to its concerns about staff poaching, HKA Global filed a “Verified Complaint” on 29 August 2024 against the partners and Accuracy US. It advances claims for breach of the RCA against Mr Beirise (Count I); breach of the TSA against Accuracy US and the Messrs Courrier and Pasco (Count II); tortious interference with contract against Messrs Courrier and Pasco and Accuracy US (Count III); breach of fiduciary duty against the partners (Count IV); and unfair competition against all defendants (Count V).

On 9 December 2024, following expedited discovery, HKA Global moved for a “preliminary” (interim) injunction.

On 26 February 2025, approximately six months after the US Proceedings were issued, Messrs Courrier and Pasco as claimants applied in the English court for negative declaratory relief. HKA Global is the first defendant; HKA UK is the second defendant. The claim is that Messrs Courrier and Pasco are not and cannot be liable for breaches of the non-compete covenant in the nominee deed. HKA Global is based in the United States, but agreed to accept service through Fieldfisher. In correspondence about Fieldfisher’s requested extension for filing the defence to enable the defendants to review documents related to the US Proceedings, Carter Bond stated that they failed “to see the relevance of the issues raised in ongoing US Proceedings”. Therefore, the claimants refused the extension. Fieldfisher also informed Carter Bond that the defendants intended to file a counterclaim and proposed an extension for filing the defence for counterclaim service at the same time. The claimants refused such an extension. The defendants filed their defence on 8 April 2025.

On 21 April 2025, Lori Will, Vice Chancellor of Delaware’s Court of Chancery, denied HKA Global’s motion for a preliminary (interim) injunction (“the interim decision”). The Vice Chancellor ruled that HKA Global had not demonstrated a reasonable likelihood of success on the merits of its breach of contract and tortious interference claims. The court stated that the restrictive covenants were likely overbroad and unenforceable. HKA Global proceeded in seeking additional discovery and a trial. The defendants applied for partial judgment on the pleadings on Counts I, III, and parts of Count II, submitting that the underlying restrictive covenants in the RCA are unenforceable as a matter of law. HKA Global opposed the motion.

On 9 June 2025, Fieldfisher wrote to Carter Bond supplying drafts of the Part 20 claim form and counterclaim and additional claim, application notice, order and witness statement in respect of its application to file a counterclaim. Fieldfisher asked Carter Bond for the claimants’ consent to the filing of the counterclaim. Carter Bond was asked if its still acted for Mr Beirise (having previously done so) and to confirm whether it would accept service for him. Fieldfisher also wrote to Jones Day, which had previously been instructed on behalf of Accuracy US, to ask if it would accept service. Jones Day declined to accept service for the additional parties; Carter Bond did not confirm whether it would do so.

On 11 June 2025 HKA UK issued an application (the “permission application”) for permission to:

The permission application thus included the application for service out of the jurisdiction against the additional parties (the “service out application”). On the same day, copies of the filed permission application documents were sent to Carter Bond (for the claimants).

On 13 June 2025, the documents were sent to Mr Beirise via email and recorded delivery, to Chipman Brown which acts for Mr Beirise in the Delaware proceedings, and to Accuracy US via email and recorded delivery and Jones Day. The additional parties and their representatives were asked (i) whether solicitors were instructed in respect of the English proceedings; (ii) if so, whether they were instructed to accept service; (iii) whether they consented to the permission application. No response was received to these letters.

On 9 July 2025, Master Eastman made an order granting the second defendant permission to file the counterclaim and additional claim and serve the additional claim on the additional parties in the United States (the “permission order”). The permission order was sealed on 11 July 2025.

On 16 July 2025, Fieldfisher filed the Part 20 claim form and the counterclaim and additional claim. Copies were sent to the additional parties on the same day and to Carter Bond.

4 August 2025 was the deadline for the claimants’ defence to counterclaim. No defence was filed. HKA UK agreed to an extension so the defence could be filed at the same time as the additional parties’ defences to the additional claim.

On 18 August 2025, HKA UK applied for alternative service by email, sending the application to the additional parties and Carter Bond on the same day. Permission was granted by Master Eastman by an order dated 6 September 2025 (the “alternative service order”). The additional parties were subsequently served with the counterclaim and additional claim in accordance with the alternative service order. Carter Bond confirmed it was instructed for Mr Beirise; Jones Day confirmed it was instructed for Accuracy US.

On 7 November 2025, Accuracy US and Mr Beirise applied under CPR Part 11 to discharge and set aside the Judge’s two orders, thereby contesting jurisdiction.

On 16 December 2025, the Delaware Court handed down judgment (the “Memorandum Opinion”) concerning the partners’ and Accuracy US’s application for dismissal of certain claims in the Delaware proceedings. HKA Global’s claims based on breach of the RCA covenants were dismissed. The Vice Chancellor also held that the English courts have exclusive jurisdiction over the nominee deed. The Vice Chancellor said (at 1) that “An additional claim concerning a separate agreement belongs in England and is dismissed without prejudice.” This is because HKA Global had invited the Delaware court to consider the nominee deed. The court refused.

As a result of their dispute, the parties invite the court to determine four issues.

The first issue concerns the respondent’s duties of full and frank disclosure and fair presentation when making an ex parte application to serve out. The next three issues arise from the tripartite test formulated by the Supreme Court in VTB Capital Plc v Nutritek International Corp [2013] 2 A.C. 337 (“VTB”): serious issue to be tried; gateway; forum. Therefore, the four issues may be shortly expressed as:

The governing law is clear and broadly agreed between the parties. There is some difference of emphasis. I now set out the legal principles I rely on.

The Court of Appeal summarised the law on service out of jurisdiction in Soriano v Forensic News LLC [2021] EWCA Civ 1952 (“Soriano”). Warby LJ said at paras 11-12:

“11.

This is well-established. For present purposes, it can be adequately distilled as follows. The court can only give permission to serve a claim on a defendant outside the jurisdiction if it meets three conditions.

(1)

The first is that the claim is of a kind that falls within one of the "gateways" set out in CPR Practice Direction 6B ("the Gateway Requirement"). On this question, the claimant has to satisfy the Court that he has a good arguable case or, as it is sometimes put, the better of the argument. This connotes "more than a serious issue to be tried or a real prospect of success but not as much as the balance of probabilities": AstraZeneca UK Ltd v Albemarle International Corp [2010] EWHC 1028 (Comm), [2010] 2 Lloyd's Rep 61 [24] (Hamblen J).

(2)

Secondly, the claimant must satisfy the court that he has a real as opposed to a fanciful prospect of success on the claim ("the Merits Test"). One way this has been put is that the claimant has to show that any "reverse" summary judgment application would fail.

(3)

Thirdly, "[t]he court will not give permission unless it is satisfied that England and Wales is the proper place in which to bring the claim": CPR 6.37(3) ("the Forum Test"). This is normally resolved by reference to the "Spiliada" principles as to the appropriate forum or (in the classic language) forum conveniens for the trial of the claim: see Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, 478-480 (Lord Goff). The question is whether this jurisdiction is "clearly or distinctly" the most appropriate. The appropriate forum is the one in which the case "may most suitably be tried for the interests of all the parties and the ends of justice". The first thing to consider is what is the "natural forum", namely the one "with which the action has the most real and substantial connection". If the court concludes that another forum is as suitable or more suitable than England, it will normally refuse permission. Again, the issue is not determined on the balance of probabilities; the claimant's task is to show that he has the better of the argument on the point. If he fails to do so, the application will be dismissed.

12.

A claimant seeking permission to serve outside the jurisdiction always bears the legal burden of proof on all these issues. That is so whether the matter is being considered on an application by the claimant at the initial, without-notice stage, or at the hearing of a subsequent application by the defendant to set aside an order permitting service outside the jurisdiction. But a defendant challenging such an order needs to identify some other forum which does have jurisdiction; and even the initial application requires there to be another candidate with the requisite jurisdiction: Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd [2020] UKSC 37, [2021] 1 All ER 1141 [96-97]. Where the claimant's contention that the case is a proper one for service out is disputed by the defendant on a specific ground the defendant bears an evidential burden in relation to that ground: see AstraZeneca (above) [33-39] (Hamblen J, as he then was)”.

It seems to me that this authoritative exposition by the Court of Appeal is clear and binding on me.

The gateway requirements for service out can be found in Part 6 of the Civil Procedure Rules 1998 (“CPR”). They provide at CPR 6.36:

“In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6B apply”.

Lord Sumption said in Brownlie v Four Seasons Holdings International [2017] UKSC 80 at para 28 that all the jurisdictional gateways in the Practice Direction ultimately are “concerned to identify some substantial and not merely casual or adventitious link between the cause of action and England”.

The Supreme Court set out the applicable merits test in Okpabi v Royal Dutch Shell Plc [2021] UKSC 3 (“Okpabi”). Lord Hamblen said at para 22:

“Where, as will often be the case where permission for service out of the jurisdiction is sought, there are particulars of claim, the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the cause of action asserted has a real prospect of success. Any particulars of claim or witness statement setting out details of the claim will be supported by a statement of truth. Save in cases where allegations of fact are demonstrably untrue or unsupportable, it is generally not appropriate for a defendant to dispute the facts alleged through evidence of its own. Doing so may well just show that there is a triable issue”.

The tort of unlawful means conspiracy has been variously explained by the senior courts. I draw on the exposition by Nicklin J in MBR Acres Ltd & Ors v Free The MBR Beagles & Ors [2022] EWHC 1677 (KB). He said at paras 33-34:

“33.

A conspiracy to injure by unlawful means is actionable where a claimant proves that s/he has suffered loss or damage as a result of unlawful action taken pursuant to a combination, or agreement, between the defendant and another person or persons, to injure him or her by unlawful means whether or not it is the predominant purpose of the defendant to do so: Kuwait OilTanker Co. v Al Bader [2000] 2 All ER (Comm) 271 [108]. [“Kuwait Oil Tanker”]

34.

The elements that a claimant must prove for unlawful means conspiracy can be broken down as follows:

i)

concerted actions between two or more persons (the “combination”);

ii)

use of unlawful means;

iii)

knowledge of the unlawfulness;

iv)

intention to injure the claimant, whether or not it is the predominant purpose of the defendant to do so;

v)

overt act in pursuance of the agreement or undertaking;

vi)

loss or damage as a result”.

Nicklin J developed his analysis at para 36, relying on the judgment of Nourse LJ in Kuwait Oil Tanker at paras 111-112:

“111.

A further feature of the tort of conspiracy, which is also found in criminal conspiracies, is that … it is not necessary to show that there is anything in the nature of an express agreement, whether formal or informal. It is sufficient if two or more persons combine with a common intention, or, in other words, that they deliberately combine, albeit tacitly, to achieve a common end. Thus it is not necessary for the conspirators all to join the conspiracy at the same time, but … the parties to it must be sufficiently aware of the surrounding circumstances and share the same object for it properly to be said that they were acting in concert at the time of the acts complained of

…

112.

In most cases it will be necessary to scrutinise the acts relied upon in order to see what inferences can be drawn as to the existence or otherwise of the alleged conspiracy or combination. It will be the rare case in which there will be evidence of the agreement itself …”.

The law on full and frank disclosure and fair presentation has been set out in general and authoritative terms by Carr J (as she then was) in Tugushev v Orlov (No 2) [2019] EWHC 2031 (Comm) (“Tugushev”) at paras 7-8:

“7.

The law is non-contentious. The following general principles can be distilled from the relevant authorities by way of summary as follows:

i.

The duty of an applicant for a without notice injunction is to make full and accurate disclosure of all material facts and to draw the court’s attention to significant factual, legal and procedural aspects of the case;

ii.

It is a high duty and of the first importance to ensure the integrity of the court’s process. It is the necessary corollary of the court being prepared to depart from the principle that it will hear both sides before reaching a decision, a basic principle of fairness. Derogation from that principle is an exceptional course adopted in cases of extreme urgency or the need for secrecy. The court must be able to rely on the party who appears alone to present the argument in a way which is not merely designed to promote its own interests but in a fair and even- handed manner, drawing attention to evidence and arguments which it can reasonably anticipate the absent party would wish to make;

iii.

Full disclosure must be linked with fair presentation. The judge must be able to have complete confidence in the thoroughness and objectivity of those presenting the case for the applicant. Thus, for example, it is not sufficient merely to exhibit numerous documents;

iv.

An applicant must make proper enquiries before making the application. He must investigate the cause of action asserted and the facts relied on before identifying and addressing any likely defences. The duty to disclose extends to matters of which the applicant would have been aware had reasonable enquiries been made. The urgency of a particular case may make it necessary for evidence to be in a less tidy or complete form than is desirable. But no amount of urgency or practical difficulty can justify a failure to identify the relevant cause of action and principal facts to be relied on;

v.

Material facts are those which it is material for the judge to know in dealing with the application as made. The duty requires an applicant to make the court aware of the issues likely to arise and the possible difficulties in the claim, but need not extend to a detailed analysis of every possible point which may arise. It extends to matters of intention and for example to disclosure of related proceedings in another jurisdiction;

vi.

Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect;

vii.

A defendant must identify clearly the alleged failures, rather than adopt a scatter gun approach. A dispute about full and frank disclosure should not be allowed to turn into a mini-trial of the merits;

viii.

In general terms it is inappropriate to seek to set aside a freezing order for nondisclosure where proof of non-disclosure depends on proof of facts which are themselves in issue in the action, unless the facts are truly so plain that they can be readily and summarily established, otherwise the application to set aside the freezing order is liable to become a form of preliminary trial in which the judge is asked to make findings (albeit provisionally) on issues which should be more properly reserved for the trial itself;

ix.

If material non-disclosure is established, the court will be astute to ensure that a claimant who obtains injunctive relief without full disclosure is deprived of any advantage he may thereby have derived;

x.

Whether or not the non-disclosure was innocent is an important consideration, but not necessarily decisive. Immediate discharge (without renewal) is likely to be the court’s starting point, at least when the failure is substantial or deliberate. It has been said on more than one occasion that it will only be in exceptional circumstances in cases of deliberate non-disclosure or misrepresentation that an order would not be discharged;

xi.

The court will discharge the order even if the order would still have been made had the relevant matter(s) been brought to its attention at the without notice hearing. This is a penal approach and intentionally so, by way of deterrent to ensure that applicants in future abide by their duties;

xii.

The court nevertheless has a discretion to continue the injunction (or impose a fresh injunction) despite a failure to disclose. Although the discretion should be exercised sparingly, the overriding consideration will always be the interests of justice. Such consideration will include examination of i) the importance of the facts not disclosed to the issues before the judge ii) the need to encourage proper compliance with the duty of full and frank disclosure and to deter non-compliance iii) whether or not and to what extent the failure was culpable iv) the injustice to a claimant which may occur if an order is discharged leaving a defendant free to dissipate assets, although a strong case on the merits will never be a good excuse for a failure to disclose material facts;

xiii.

The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure.

…

8.

There is no suggestion that the same principles do not apply to a without notice application for permission to serve out as they do on a without notice application for a freezing order (as confirmed for example in PJSC Commercial Bank PrivatBank v Kolomoisky and others (supra) at [169] and Sloutsker v Romanova [2015] EWHC 545 (QB) at [52])”.

This much-cited account of the law was approved by the Court of Appeal in Derma Med Ltd v Ally [2024] EWCA Civ 175, which noted at para 30:

“Although this was said in the context of an application for a freezing order, the principles are of general application. I would draw particular attention, as relevant in the present case, to the fact that the overriding consideration when deciding whether to continue an injunction or grant a fresh injunction despite a failure of disclosure is the interests of justice; and to the need to maintain a due sense of proportion in complex cases. This latter point was made by Mr Justice Toulson in Crown Resources AG v Vinogradsky (15 June 2001) and was adopted by the Court of Appeal in Kazakhstan Kagazy Plc v Arip [2014] EWCA Civ 381, [2014] 1 CLC 451 at para 36”.

Finally, the law concerning the duty to make full and frank disclosure which rests on an applicant on a without notice application was summarised as follows by Warby J in Sloutsker v Romanova [2015] EWHC 545 (QB); [2015] 2 Costs LR 321, at para 51:

“i)

An applicant for permission to serve proceedings outside the jurisdiction is under the duty of full and frank disclosure which applies on all applications without notice.

ii)

The duty requires the applicant to make a full and fair disclosure of those facts which it is material for the court to know: Brinks Mat v Elcombe [1988] 1 WLR 1350, 1356 (1) and (2) (Ralph Gibson LJ). Put another way, disclosure should be made of “any matter, which, if the other party were represented, that party would wish the court to be aware of”: ABCI v Banque Franco-Tunisienne [1996] 1 Lloyd's Rep 485, 489 (Waller J).

iii)

Non-disclosure of material facts on an application made without notice may lead to the setting aside of the order obtained, without examination of the merits. It is important to uphold the requirement of full and frank disclosure.

iv)

But the court has a discretion to set aside or to continue the order. Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues that were to be decided. The answer to the question whether the non-disclosure was innocent is an important, though not decisive, consideration. See Brinks Mat at pp1357 (6) and (7) and 1358 (Balcombe LJ).

v)

In the context of permission for service outside the jurisdiction the court has a discretion to set aside the order for service and require a fresh application, or to treat the claim form as validly served and deal with the non-disclosure by a costs order: NML Capital Ltd v Republic of Argentina [2011] UKSC 31, [2011] 2 AC 495, [136] (Lord Collins)”.

In Masri v Consolidated Contractors International Co SAL [2011] EWHC 1780 (Comm), Burton J said at para 58:

“The law as to non-disclosure is of course well established: the ‘golden rule’ is that, on an ex parte application - it seems to me particularly where this is made on paper where the judge is left to consider on his own in his or her room what may often be a pile of undigested exhibits - the party making the application must identify any material facts, and in particular any which may constitute a defence or some ground for not granting the order sought. The most significant consequence is where an ex parte injunction, such as a drastic freezing order with immediate effect and possibly long-lasting consequences, is made which might not have been made if material facts had been disclosed. But the duty arises on any ex parte application, and certainly so on one for service out of the jurisdiction, where what is being sought is the exercise of an exorbitant jurisdiction, bringing a foreign defendant within the jurisdiction even if only to incur the cost and inconvenience of fighting a jurisdiction application successfully”.

In Ophthalmic Innovations International (UK) Ltd v Ophthalmic Innovations International Inc [2004] EWHC 2948 (Ch) (“Ophthalmic”), Lawrence Collins J set aside the order granting permission to serve proceedings out of the jurisdiction. He stated at para 45 that the

“existence of overlapping proceedings in a foreign jurisdiction between the same or related parties (whether pending or prospective) is likely to be a particularly relevant matter which in normal circumstances must be disclosed, and the non-disclosure of which may well of itself lead to the order for permission being set aside”.

In Fundo Soberano de Angola v Jose Filomeno dos Santos [2018] EWHC 2199 (Comm), Popplewell J said at para 52:

“The evidence and argument must be presented and summarised in a way which, taken as a whole, is not misleading or unfairly one-sided. In a complex case with a large volume of documents, it is not enough if disclosure is made in some part of the material, even if amongst that which the judge is invited to read, if that aspect of the evidence and its significance is obscured by an unfair summary or presentation of the case. The task of the judge on a without notice application in complex cases such as the present is not an easy one. He or she is often under time constraints which render it impossible to read all the documentary evidence on which the application is based, or to absorb all the nuances of what is read in advance, without the signposting which is contained in the main affidavit and skeleton argument. It is essential to the efficient administration of justice that the judge can rely on having been given a full and fair summary of the available evidence and competing considerations which are relevant to the decision”.

In Mex Group Worldwide Ltd v Stewart Owen Ford and others [2024] EWCA Civ 959 (“Mex Group”), the Court of Appeal revisited this terrain. Males LJ said at para 112:

“… I sought in National Bank Trust v Yurov [2016] EWHC 1913 (Comm) at [14] and [15] to encourage a degree of restraint and a sense of proportion on the part of those seeking to set aside without notice orders on this ground, but it appears that the message has not got through. In this case we have been prepared to separate the wheat from the chaff, but I would suggest a different approach for the future. In future, if the court is presented with a long shopping list of alleged failures of disclosure, with no attempt made to identify the relatively few points which really matter, it should simply decline to consider the issue at all”.

Coulson LJ said at paras 127-128:

“It is almost always the position that, no matter how big the case or how complex the underlying issues, a defendant's case that the claimant failed to make full and frank disclosure at the ex parte hearing will stand or fall on no more than a handful of alleged failures. That is because, if the 'big ticket' allegations of failure are not established, or are established but found to be immaterial, then the less significant failures will not bridge the gap. It is the law of diminishing returns … Accordingly, those preparing this sort of attack in the future should ensure that they concentrate their efforts on alleged failures of disclosure which are clear-cut and obviously important. Quality not quantity should be the watchword. The failure to follow that course … means that there is a real risk that the best points become buried in an avalanche of trivia …”.

Even in respect of freezing orders, save in extraordinary cases, only failures of full and frank disclosure which “shiver the timbers” of the court will lead to discharge of a without notice order and allegations of failures should not be used as a “tabula in naufragio” (plank in a shipwreck) per Burton J, in Darnitsa v MetabayImport/Export Ltd [2021] EWHC 1441 at para 16:

“It has over many years become an inevitability that there is in almost every application to discharge or opposed application to continue an injunction an allegation of full and frank disclosure, which is often, as Slade LJ described it in Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350CA, used as a “tabula in naufragio”. There will be cases where the consequence of a non-disclosure can be shown to be that the order would not, or at least might not, have been made, had the truth been told. There may also be cases in which, even if the order would still have been made, the seriousness of a non-disclosure must be marked either by a discharge of the order or at any rate by a suitably penal order for costs. But in the ordinary case a judge on the return day or on a discharge application must really have his timbers shivered by something serious that has gone wrong, rather than a litany of matters that could have been put differently or could have been expanded. My timbers have not been shivered in this case”.

I have carefully read the judgment of Richard Spearman KC, sitting as a Deputy Judge, in Marinakis v Karapidis [2025] EWHC 13 (KB), mentioned in the applicants’ skeleton argument and provided to me by the respondent in a further bundle of authorities. I am grateful to the Deputy Judge for the thoroughness of his legal exposition, touching on many of the authorities above.

The parties remain in dispute about whether there is a “lower duty” of full and frank disclosure in service out cases compared to, say, freezing order applications. In my view, the following points arise:

The applicants submit that the respondent failed in its duties of full and frank disclosure and fair presentation. I examine first the breaches of duty alleged, before assessing the materiality of any failure found. Three disclosure failures are complained of. First, about the US proceedings. Second, the Delaware court’s interim decision. The respondent admits that this was not disclosed to the Judge. Third, the TSA.

I should record at the outset that in restricting their allegations of material failure to three heads, the applicants have observed the exhortations of the Court of Appeal in Mex Group to focus on the essentials. I also take the applicants’ point that Lewis 1 has no devoted full and frank disclosure section. While such a section is often found in statements in support of ex parte or without notice hearings, it is not a CPR requirement. My approach, therefore, is to view the contents of Lewis 1 and the application documents, including pleadings presented to the Judge, in the round to assess whether the respondent has complied with its full and frank disclosure and fair presentation duties, before considering materiality.

The complaint is that the respondent failed to make any proper disclosure to the court of the nature and details of the extant US proceedings, notwithstanding that those proceedings had been under way for many months by the time of the application to serve out. It is submitted that these Delaware proceedings concerned substantially the same factual matrix and overlapping allegations as the additional claim. There had been a very substantial expedited discovery process, including exchange of interrogatories, production of extensive documentation, and depositions of key witnesses. Accordingly, the applicants had been defending significantly progressed proceedings in claims brought by HKA Global (called “HKA US”) against them in Delaware. Despite this, Lewis 1 only mentions the US proceedings “in passing”, and then merely as explanation for delay in filing the counterclaim and additional claim and to note that “the causes of action in the English proceedings are based on different contractual documentation to those in the US proceedings.” It is submitted that this is a twin failure of duty.

Lewis 1 did contain reference to the US proceedings. Thus, it is not failure to mention the proceedings that founds a breach of duty, but the degree of exposition. Lewis 1 states the following at para 4:

“In addition to these proceedings in this jurisdiction, there are ongoing proceedings between all parties except HKA UK in the State of Delaware, USA (“the US Proceedings”). In the US Proceedings, the First Defendant (“HKA US”) brings claims against the Partners and Accuracy US for breach of contract, tortious interference with contractual relations, breach of fiduciary duty and unfair competition, seeking injunctive relief and damages”.

There was further treatment at paras 25 and 27, as recognised by the applicants. Lewis 1 states at para 25, explaining the delay in filing the English application:

“This was due to the need to arrange for access to and review of key documents and information from the US Proceedings and the Claimants' legal representatives in the US Proceedings. The documentation that has been assembled in the US Proceedings is extensive and therefore it took time to liaise with the Defendants and their US counsel and to establish the relevant factual background”.

The Judge was accurately told that the English proceedings are based on different contracts. The statement identified the parties to the US proceedings and the causes of action. In his statement in response, Mr Brown on behalf of the applicants states that the failure was to disclose the “nature and details” of the proceedings. This is vague, not specifying what was missing.

I start from the premise that the fact of the US proceedings was material and should have been disclosed. It was. Putting the interim decision to one side – examined at Failure 3 - I remain unpersuaded that there were relevant details omitted in Lewis 1.

Therefore, I judge that there was not a failure to disclose the US proceedings in fact or degree of detail, nor a lack of fair presentation. Nevertheless, I consider the question of materiality.

It is submitted that the failure to disclose the US proceedings adequately deprived the Judge of the opportunity to consider whether there may be (1) abuse of process through the conducting of parallel proceedings; (2) whether another forum was already seised. The applicants submit that the connection between the proceedings is inextricable and allege that US court documents were used by the respondent in its serve out application without seeking the permission of the Delaware court. On the alleged misuse of court documents, I make no finding. A decision is awaited from Delaware.

As to abuse and another forum being seised, the counterclaim and additional claim concern the nominee deed over which the Delaware court has no jurisdiction. Therefore, the Delaware court is not seised with the nominee deed claim. Further, there is no risk of abusive parallel proceedings. These are separate agreements with different choice of law and jurisdiction clauses.

I cannot accept the applicants’ submission that Mr Beirise’s RCA and obligations under the nominee deed “need to be considered together to understand the extent of the obligations upon him”. They are separate obligations arising from his entering into two different agreements at different times. It is submitted that they arise from “a single employment relationship”. However, the obligations under the nominee deed arise out of an investment agreement. Mr Beirise contracted into the bargain. He did not need to. The obligation not to poach HKA’s staff members arises because of his contractual choice.

As to Accuracy US, the respondent never suggested to the Judge that Accuracy US was bound by the nominee deed, and it is not. I reject the applicants’ submission that the Judge was not assisted on “the interaction with the US proceedings”. These are distinct and separate claims about alleged breaches of separate legal agreements. The one does not determine the other. The jurisdiction and choice of law clauses are different. I fully recognise the dicta of Lawrence Collins J in Ophthalmic Innovations International (UK) Ltd v Ophthalmic Innovations International Inc [2004] 1 Lloyds Rep 2948 (“Ophthalmic”) at para 45 that the existence of overlapping proceedings needs to be disclosed with care. Subject to the failure to disclose the interim decision, which I examine below, the nature and existence of the US proceedings were adequately disclosed.

Therefore, on the US proceedings (excepting for now the interim decision), there is no material failure.

As to the TSA, the applicants submit that the respondent “failed to put the settlement agreement before the English court”. However, it is not factually accurate to state that there was no reference to the TSA in Lewis 1. In Brown 1, the applicants accept that there was reference to the TSA, albeit “only in passing”. Thus, the question is whether there are relevant parts of the TSA that the respondent failed to disclose to the Judge.

The applicants submit that the whole TSA should have been exhibited. They submit “it is an essential limb of the Additional Claim as it concerns the Non-Compete Covenant”. The applicants submit that the additional claim relies on establishing a breach of the TSA so that the “releases under the Settlement Agreement of nominee deed covenants therefore do not apply.” This is incorrect.

The respondent’s additional claim rests on breach of the nominee deed. It is breaches of the nominee deed that may invalidate the partial release under the TSA. Put another way: conduct in contravention of the nominee deed covenants would trigger a breach of the warranty contained within the TSA and it is the effect of the nominee deed breaches that may make the partial releases fall away. The counterclaim and additional claim deal with the TSA at paras 43-47 and 55 as follows:

“The Transition and Settlement Agreement

43.

As set out in paragraphs 9.1 of the Particulars of Claim in the Claim, and in paragraphs 17 to 18 of the Defence, on 6 August 2024 the Partners, Accuracy and HKA US entered into a Transition and Settlement Agreement (“the Settlement Agreement”).

44.

Clause 7.2 of the Settlement Agreement provided a limited conditional release of the Partners from the Non-Compete Covenant “provided and only for so long as the Partners and Accuracy US comply with the terms of this Agreement.” Clause 7.2 also expressly stated there was no release from the Non-Poach Covenant and the Confidentiality Covenant, all of which remained in full force.

45.

Further, clause 7.2 of the Settlement Agreement provided that Accuracy US would inform a designated representation of HKA of any employment offer it made to a current HKA employee, subject to the employee’s consent to disclose (which consent Accuracy would request in good faith from each such employee).

46.

Pursuant to clauses 8.1 and 8.2 of the Settlement Agreement:

46.1.

The Partners warranted and represented that as of 6 August, there were no facts or circumstances of which they were aware or ought reasonably be aware that might reasonably be considered to amount to a breach by the Partners of the Nominee Deed and/or Deed of Adherence.

46.2.

Accuracy US warranted and represented that neither it nor any Affiliate (as defined) had, or would, request that the Partners undertake any activities that would likely constitute a breach by the Partners of the obligations they owe to HKA, as varied by the Settlement Agreement, under the Nominee Deed and/or at law.

47.

Pursuant to clause 4.1 of the Settlement Agreement, the Partners’ employment with the HKA Group terminated on Friday, 9 August 2024 and on Monday, 12 August 2024 they each began working at Accuracy US. The Partners are performing the same duties for Accuracy US as they performed during their employment with the HKA Group, in competition with the HKA Group.”

…

55.

… clause 7.2 of the Settlement Agreement only provided a limited release of the Partners from the Non-Compete Covenant which was contingent on the Partners and Accuracy US complying with the terms of the Settlement Agreement. Both the Partners and Accuracy US failed to comply with the terms of the Settlement Agreement, including by breaching the Non-Poach Covenant and/or the Confidentiality Covenant as set out further below. As a result, the limited release no longer applies, and the Partners are each in breach of the Non-Compete Covenant by working for Accuracy US since 12 August 2024”.

I interject here, and purely for completeness as the full text was not placed before the Judge, that clause 7.2 provides:

“7.2

For the avoidance of doubt, HKA only agrees to release the Partners from the non-competition provisions set forth in the Investment Documents and Service Agreements, provided and only for so long as the Partners and Accuracy US comply with the terms of this Agreement. HKA also agrees to partially waive the non-solicitation of clients provisions set forth in the Investment Documents and Service Agreements, provided and only for so long as the Partners and Accuracy US comply with the terms of this Agreement, but such waiver shall only be applicable to the clients listed on Schedule 1 attached hereto. HKA does not agree to waive any other non-solicitation of clients and personnel restrictive covenant or confidentiality obligations of the Partners set forth in the Investment Documents and Service Agreements RCA Obligations and such RCA Obligations shall remain in full force and effect as set forth in the respective Investment Documents and Service Agreements”.

Leaving aside this full recitation of clause 7.2, I am satisfied that the pleading placed the relevant parts of the TSA before the Judge. The pleading explains the connection between those provisions and the nominee deed and thus the claim before the English court, which rests on nominee deed breach. Indeed, Lewis 1 builds on the pleaded account by stating at para 22:

“Before and after the termination of the Partners' employment, the Partners attempted to entice employees from the HKA Group to join Accuracy US, and/or procured offers of employment from Accuracy US. The Partners thereby breached the settlement agreements entered into by them on 6 August 2024 shortly after their exit from the Defendants, and due to such breach, the clauses and covenants contained in the Nominee Deed remain binding on the Partners, including the “Outside Interests Clause”, the “Non-Compete Covenant”, the “Confidentiality Covenant”, and the “Non-Poach Covenant”.”

I cannot accept the submission that the entire TSA should have been disclosed to the Judge. Legal agreements often contain large tracts of material irrelevant to the issue before the court. It is necessary to exercise discernment and focus on what is relevant. The applicants provide no clear account of which additional parts of the TSA should have been disclosed, and what passages within the omitted text of the TSA the respondent failed to draw the Judge’s attention to. The relevant passages in the pleadings set out the relevant clause in the TSA; its provision of a potential limited release; the exclusion of the non-poach and confidentiality covenants from any release; the warranty not to undertake any activities likely to “constitute a breach by the Partners of the obligations they owe to HKA, as varied by the TSA, under the Nominee Deed”. Thus, the evidence put before the Judge alerted the court to the question of whether the partial release from the TSA remained effective or whether, due to the breach of warranty, it falls away.

I reject the applicants’ submission that it is “astonishing” that the TSA was not exhibited in its entirety. To my mind, its nature and effect was brought sufficiently to the attention of the Judge and there was no failure of fair presentation. The essential substance being disclosed, I find that there was no material failure.

It is accepted by the respondent that the interim decision of the Vice Chancellor of the Delaware court was not brought to the Judge’s attention. The question is purely one of materiality.

The interim decision was handed down two months before the respondent’s application to serve out. To assess the materiality of the failure, one must understand what the Delaware court decided and did not.

HKA Global applied for interim relief: a “preliminary” injunction to enforce restrictive covenants contained in Mr Beirise’s RCA, which are subject to Delaware law and jurisdiction. The application was refused by the Vice Chancellor in her interim decision. Since the accepted failure was of the TSA, the respondent submits that the interim decision is of “no material relevance”.

I note the comments made by the Delaware court about the nominee deed:

“The Nominee Deed includes post-employment restrictive covenants, and it obligates the parties to seek enforcement of those covenants in England. That document is Exhibit 20 to the plaintiff's opening brief”.

In the interim decision, the RCA was considered as an employment agreement:

“But, as HKA points out, the parties to the RCA and Nominee Deed are not the same. And the agreements serve different purposes: the RCA pertains to Beirise's employment and post-employment with HKA, and the Nominee Deed pertains to the parties relationship vis-a-vis the legal title to securities the nominee acquired on behalf of Beirise. I think that HKA probably has the better of this argument. But even if HKA were right about the standing and the effect of the Nominee Deed, HKA is not reasonably likely to succeed on its claim for breach of the restrictive covenants, specifically the non-solicit that I'm being asked to consider now, because of the breadth of the covenant's scope”.

For completeness, and emphasising that this could not be placed before the Judge in the application to serve out, the Vice Chancellor confirmed her characterisation of the RCA in the memorandum opinion, where she said it was “a stretch” to position the RCA as having been entered into in the “acquisition context”. As the respondent submits, the legal approach to covenants in employment agreements differs from that in an investment agreement, the latter being assessed with less anxious scrutiny (Cavendish Square Holdings BV v El Makdessi [2013] 1 All ER (Comm) 787, per Burton J at para 15).

As to the TSA, the breaches were predicated on breaches of the RCA, which in itself was facially unreasonably wide and thus unenforceable. Thus, the TSA breaches had little likelihood of success, the Delaware court held.

It seems to me that the impact of the interim decision in determining whether this court has jurisdiction is limited. The Delaware court primarily considered a different contract: the RCA. The RCA is a different contract in kind: an employment contract rather than an investment agreement. Contrary to this, the applicants submit that the relevance of the interim decision arises from being concerned with “materially similar restrictive covenants”. They rely in particular on the obiter comments made by the Vice Chancellor about the non-compete covenant in the RCA. The applicants submit that the RCA non-compete covenant, which was held unenforceable, is narrower than the non-compete covenant in the nominee deed. The Delaware court found that the similar covenants in the RCA were “probably unenforceable” for “vagueness and overbreadth in view of HKA’s legitimate economic interests” and that HKA Global had “not demonstrated a reasonable likelihood of success on the merits.” The Vice Chancellor expressly noted that her findings in respect of the non-solicit provisions were likely also to bear on the non-compete provisions. However, that aspect of the interim relief sought had been later abandoned.

I judge that it is the next submission by the applicants that gets to the heart of the matter. It is submitted that the respondent should have highlighted to the Judge a line of argument open to the absent applicants that if these RCA covenants were likely unenforceable, by parity of reasoning, the claims of breach alleged against Mr Beirise of the similar covenants in the nominee deed are arguably similarly unsustainable. By logical consequence, the Judge should have had placed before him the line of logic that if nominee deed covenants were arguably unenforceable, the derivative tortious claims would arguably also collapse. None of this was placed before the Judge.

I focus on what I am here considering: whether the duties falling on the respondent in making the application of full and frank disclosure and fair presentation were complied with. It is not for me to adjudicate whether the absent argument would or should succeed, but whether the Judge should have had the interim decision and the possible line of argument or defence open to the applicants placed before him. I judge that this should have happened. It did not.

As to materiality, I judge that the failure to bring to the attention of the Judge (a) the interim decision and (b) the available line of argument open to the applicants arising from it, to be a material breach of both the respondent’s full and frank disclosure duty and its duty of fair presentation. It is not necessary for the undisclosed material or line of possible defence to be determinative. The test is not that high. But I am clear that in respect of the interim decision and concomitant line of argument, there was not a conscientious attempt by the respondent to make good and compensate for the absence of the applicants in the ex parte process. The deviation from the principle of fairness, as Carr J succinctly termed it in Tugushev, to my mind is significant in situations such as this. While I recognise that potential consequences for parties sought to be served out may not be as potentially serious as in, for example, a worldwide freezing order, it is always a serious step to serve a party out of the jurisdiction and not to be taken lightly. In such a situation, a judge needs the best assistance available. It is imperative that the presentation is fair, balanced and even-handed.

I have no hesitation in concluding that the Judge should have been provided with the Vice Chancellor’s interim decision. He should have had explained to him in Lewis 1 that the applicants may wish to argue by close analogy that the prospects of success in the additional claim are adversely affected by the reasoning of the Delaware court. The point is not that such arguments are bound to have prevailed, but that they should have been carefully and fairly placed before the Judge, as they have been before me, so he could make of them what he will. Mr Lewis explicitly makes the salient points on behalf of the respondent: the different contracts, choices of law and jurisdiction. But he puts nothing in the balance against them arising from the interim decision. It could have been pointed out to the Judge that the comments of the Vice Chancellor were obiter, but what should not have been wholly omitted was the availability of the argument from analogy. It was.

That said, I accept the respondent’s criticism of the opinion offered by Mr Brown in his statement (para 18) about how English and Delaware law are “closely aligned” on restrictive covenants. Mr Brown does not hold himself out to be an expert. His opinion is, I agree, inadmissible. Nevertheless, there is a logical inconsistency. The respondent quite properly brought the fact of the US proceedings to the Judge’s attention, but then failed to inform him of decision of the Vice Chancellor of the seised US court in those proceedings, handed down just weeks before the application filed in this jurisdiction.

There is an admitted failure to bring the interim decision to the Judge’s attention. I judge it to be a material failure. There was an associated failure of fair presentation to present an obvious argument available to the applicants. That was also a material breach of duty.

I consider the appropriate remedy for these breaches of duty at the end of the judgment in Section X.

Under CPR 6.37(1)(b), the test of whether there is a serious issue to be tried is the same as the “real prospect of success” test required under CPR Part 24 (Carvill America Inc and another v Camperdown UK Ltd and others [2005] 1 CLC 845, para 24). Accordingly, the respondent must show that it has a realistic, as opposed to fanciful, chance of succeeding in its counterclaim and additional claim. This is equivalent to the “real prospect of success” test for summary judgment under CPR 24.6. The relevant principle is that a foreign party (or potential party) should not be exposed to proceedings in a different jurisdiction which it would be entitled to have summarily dismissed. On this, the Court of Appeal explained in Elite Property Holdings Ltd v Barclays Bank PLC [2019] EWCA Civ 204 (para 41) that a claim does not raise a serious issue to be tried where

“(a)

it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance;

(b)

the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or

(c)

the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences”.

In Kawasaki Kisen Kaisha v James Kemball [2021] EWCA Civ 33, Popplewell LJ said at para 41 that for a serious issue to be tried, it is insufficient that the claim is merely arguable, rather “it must carry some degree of conviction.”

In the application to set aside, the objection under this head was primarily based on the interim decision: the Delaware court has ruled that the restrictive covenants in the TSA are unenforceable and “similar” restrictive covenants in the nominee deed are likely to be similarly held unreasonably restrictive. The respondent contests the validity of such analogous argumentation here.

It remains incumbent on the respondent to establish a serious issue to be tried in its claim. The Supreme Court made this unmistakably clear in Okpabi, the well-known Nigerian oil contamination claim. The court said at para 22, when Lord Hamblen delivered the court’s joint judgment:

“Where, as will often be the case where permission for service out of the jurisdiction is sought, there are particulars of claim, the analytical focus should be on the particulars of claim and whether, on the basis that the facts there alleged are true, the cause of action asserted has a real prospect of success. Any particulars of claim or witness statement setting out details of the claim will be supported by a statement of truth. Save in cases where allegations of fact are demonstrably untrue or unsupportable, it is generally not appropriate for a defendant to dispute the facts alleged through evidence of its own. Doing so may well just show that there is a triable issue”.

This seems to me of great importance. A Judge must approach the question of serious issue to be tried with an “analytical focus” on the particulars of claim, supported by the affidavit and its statement of truth. I have set out previously the key elements of the particulars of claim that deal with the alleged conspiracy. In accordance with Lord Hamblen, it is necessary to take the facts contained in the particulars of claim as “true” for serious issue to be tried purposes unless they are “demonstrably untrue or unsupportable”. There has been no or no serious submission made to me that the facts contained in the counterclaim and additional claim fall into the category of untruth or being inherently unsupportable. Thus, the question is whether based on the counterclaim and additional claim there is a more than fanciful prospect of success in the claim against either proposed party. In making good their submission, the applicants rely on a number of heads.

First, the close alignment stated to exist between English and Delaware law based on the opinion of Mr Brown. As previously explained, his non-expert opinion is inadmissible.

Second, the underlying “common relationship”. To my mind, the submission does not sufficiently recognise the different nature of employment and investment agreements. This distinction has long been recognised in English law. It is set out variously, but finds clear expression in Cavendish Square Holdings BV v Makdessi [2012] EWHC 3582 (Comm). In the section of his judgment dealing with restraint of trade, Burton J said at para 15(vi):

“The law distinguishes between covenants in employment contracts and covenants in business sale agreements. There is more freedom of contract between buyer and seller than between master and servant, because it is in the public interest that the seller should be able to achieve a high price for what he has to sell: see Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535, [1891–94] All ER Rep 1, Mason’s case and Attwood v Lamont [1920] 3 KB 571, [1920] All ER Rep 55: see also Ronbar Enterprises Ltd v Green [1954] 2 All ER 266 at 270, [1954] 1 WLR 815 at 820 and 821 per Jenkins LJ: ‘It is obvious that in many types of business the goodwill would be well-nigh unsaleable if it was unlawful for the vendor to enter into an adequate covenant against competition.’ The quantum of consideration may enter into the question of the reasonableness of the covenant: see Alec Lobb (Garages) Ltd v Total Oil GB Ltd [1985] 1 All ER 303 at 310, 318, [1985] 1 WLR 173 at 179, 191 (citing Nordenfelt’s case [1894] AC 535 at 565, [1891–94] All ER Rep 1 at 18)”.

On this, the recitals to Mr Beirise’s (“the Executive”) employment contract with the Kenrich Group (“the Employer”) leave no room for doubt:

“RECITALS

WHEREAS, Employer desires to continue to employ Executive.

WHEREAS, Executive desires to continue to be employed by Employer.

WHEREAS, the Parties acknowledge and agree that this Agreement is a condition precedent to the execution of the amended and restated employment agreement (to which this

Employment Agreement, Employer would be unwilling to continue to employ Executive.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and conditions herein, and payment of the consideration described herein and in the Employment Agreement, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree as follows: …”.

The parties then enter in the agreement for the restrictive covenants. The respondent’s claims do not allege any breach of the TSA. Once more, the logical sequencing is critical: a proven breach of the nominee deed may invalidate the TSA partial releases. However, the claim brought by the respondent is that there has been a breach of the nominee deed through the combined action of the applicants, whether directly or through procurement (Accuracy US). While HKA Global resolved the competition dispute through the TSA on strict conditions, the non-poach covenant remained. The particulars of claim – the fact alleged in them taken to be true in Okpabi terms - set out in granular detail key steps in the “scheme”, as the Vice Chancellor summarised it, to lure away HKA Global staff members. It was called “Project K”. No explanation for the euphemistic name or the secrecy, if that it way, has been provided to this court, despite enquiry by the court.

Third, the applicants submit that Mr Lewis’ explanation is “extremely brief” and failed to “identify any of the alleged elements of the unlawful means conspiracy relied upon in the PoC”. This submission does not recognise sufficiently the Okpabi approach to facts alleged. Thus, subject to “demonstrable” untruthfulness or insupportability, I examine Lewis 1 and the counterclaim and additional claim together and assume the facts are true. Once done, it is clear how the unlawful means conspiracy alleged is made and made out. There is a serious issue to be tried about it. It is far from complicated. Without repeating everything set out in detail in the counterclaim and additional claim, I identify some important features. While doing so, I recognise the gravity of an allegation of unlawful means conspiracy. It is tantamount to an allegation of fraud (Mackenzie v Rosenblatt [2023] EWHC 331 (Ch) at paras 226-233). Some conspiracies are complicated. However, there is no great complexity in what is alleged here. The unlawful means alleged are the breach of the nominee deed, whether directly or indirectly, through inducement or procurement. This is spelled out clearly in the counterclaim and additional claim.

Further, there is nothing mysterious or esoteric about the general concept of agreement in a conspiracy. It is explained to jurors dozens of times every week up and down the country. Naturally, as an economic tort, the objective of the conspiracy is different to a conspiracy to murder or burgle. But agreement is necessary. Agreement can be inferred from totality of circumstances, and commonly is.

The conspiracy alleged is the agreement to act in combination to entice, encourage or lure away HKA Global members of staff to join its newly formed competitor Accuracy US. Without replicating the entirety of the counterclaim and additional claim, they plead the conspiracy in this way:

“22.

On 30 October 2023, Mr Beirise met with Accuracy UK Limited partner Herve de Trogoff (“Mr de Trogoff”) to discuss the expansion of Accuracy into the US using a team of 10-15 HKA consultants (including 3-5 partners). From this point (at the latest) Mr Beirise became the leader of a co-ordinated plan with Accuracy to establish a ready-made operation in the US, involving the recruitment of other HKA partners and employees, which they ultimately referred to as “Project K”.

…

24.

By email dated 20 November 2023, Mr Beirise sent Mr de Trogoff copies of various documents including the Nominee Deed and his Deed of Adherence.

25.

The in-person meetings took place in New York City between 13-15 December 2023 as planned. In particular, on 13 December 2023, Accuracy and the Initial Partners (led by Mr Beirise) gave presentations to each other. The partners’ presentation to Accuracy (“the Project K Presentation”):

25.1.

Covered topics such as … [Redacted by order of Dove J dated 22 August 2025]. In his preparation of the presentation, Mr Beirise asked another HKA partner for salary information in respect of HKA employees who worked with the HKA partners involved in Project K.

25.2.

Included slides setting out the names of 10 “Key Staff” they worked with at HKA, their geographical location and the salary and bonus ranges for different staff levels including Director, Associate Director and Manager. No less than six of these individuals later received offers of employment from Accuracy.

25.3.

As such, the presentation contained information which was confidential to the HKA Group, it was misused unlawfully and without any legitimate basis for so doing, and no permission had been requested or given for its use in the presentation.

37.

On 7 June 2024 Accuracy provided … [Redacted similarly].

59.3.

Accuracy US procured or induced the Partners to commit such breaches by directly or indirectly encouraging them to do so in furtherance of the Project K plan, including by providing them with an indemnity against claims by HKA as set out in paragraph 37 above”.

The level of detail in the counterclaim and additional claim is telling. The respondent does not rely on a generic allegation of misconduct, but is highly specific in its particularisation. The respondent details the parties involved in the relevant conversations, providing dates, meetings, emails, identification of the documents sent back and forth (including nominee deed and deed of adherence), the presentation by the partners, the topics covered [Redacted by order of Dove J, 22 August 2025], the name given for the project (Project K), naming of key staff targeted, the number of these key staff members (six) receiving an offer of employment from Accuracy US, and the [Redacted, similarly]. Accuracy US is said to have procured or induced the breach of the nominee deed by “encouraging” the partners to act in the way alleged. Accuracy US was the destination employer and competitor with HKA Global.

Focusing on the question of the solicitation (poaching) of HKA Global staff members: the facts alleged in the counterclaim and additional claim, once assumed to be true, are plainly sufficient to pass significantly beyond the fanciful prospects of success threshold and carry a degree of conviction. The same applies to Accuracy US’s procuring and inducement of the partners’ conduct. There is a mass of detail; there are obvious and reasonable inferences to be drawn from the totality of conduct about knowledge and intention in the familiar way in conspiracy cases.

Fourth, the applicants submit that there is nothing to suggest that “the proper law of the conspiracy claim would be English law.” However, the choice of law under the nominee deed is English law. The alleged conspiracy is directed at a breach of a legal agreement governed by English law with a jurisdiction clause in favour of the English court. I deal with forum in the next section, but there is a clear basis for suggesting that the English law of conspiracy should govern the allegedly conspiratorial breach of an instrument governed by English law to be tried in an English court, should the jurisdiction clause bargained for by Mr Beirise be facially applied. The applicants are correct that the relevant acts are said to take place in the United States and that factor is an important question for forum, but I do not regard it as diminishing the intrinsic merits of what is assumed to be factually true in the counterclaim and additional claim or reducing the prospects of the success of the claim below the threshold level. If the argument is that the claim fails the serious issue to be tried test because of forum difficulties, I reject that, as will be seen when forum is examined, but the focus should be on the merits of the claim on the facts assumed to be true.

Fifth, the applicants rely on the rulings of the Delaware court in a distinct sense from that already deployed in the full and frank disclosure argument. While I have concluded that the respondent should have disclosed the interim decision to the Judge and the associated argument by analogy, it does not follow that these factors reduce the merits of the respondent’s claims below the serious issue to be tried threshold. On the material before me, I am clear that they do not. This is because the nominee deed is an investment agreement. It is distinct in nature and status to the RCA, and Mr Beirise’s employment contract. As to the TSA, as already explained, the breach of that agreement is not the focus of the respondent’s claims in this jurisdiction against the applicants. While, as the respondent realistically envisages in oral argument, the applicants may seek to deploy the TSA “by way of defence”, I am unpersuaded that this Delaware law-governed agreement reduces the prospects of success of a claim brought in England for the breach of the nominee deed, governed by English law, to the fanciful. The applicants rely on “similar covenants” in the nominee deed to those in the RCA. The difficulty faced by the applicants is that the legal agreements are materially different: in legal content, legal status, in choice of law, in choice of jurisdiction. The English court determining an agreement under English law is not bound by the Delaware court interpreting a different agreement under Delaware law.

The memorandum opinion was not available to be placed before the Judge, post-dating the application to serve out. In it, the Vice Chancellor expressed her doubts whether covenants in the RCA, even if viewed as restrictions in an investment agreement, were enforceable. Equally, however, the obiter comments by the Vice Chancellor in that later ruling do not and cannot bind this court. The RCA is not the nominee deed. They are separate agreements that ultimately must be interpreted separately.

The applicants point out that there is no contractual relationship between Accuracy US and the respondent. This is factually correct, but there does not need to be in a claim for the tort of unlawful means conspiracy. The applicants also point out that Accuracy US was only incorporated in May 2024. This fact is relied on since the conspiracy is alleged to have arisen, according to the counterclaim and additional claim (para 60), “no later than December 2023/January 2024”. This chronology is accurate. The question is its significance. It well recognised across our legal domains that a party may join a conspiracy after it has been formed (Kuwait Oil Tanker, para 111). A later-joining conspirator is a conspirator nonetheless. There is nothing in this point.

It is submitted that the conspiracy cannot be made out against Accuracy US as pleaded. The counterclaim and additional claim state at para 60.2 that each of the partners and Accuracy US “agreed and/or understood that they would breach the Outside Interests Clause and/or the Non-Compete Covenant and/or the Non-Poach Covenant and the Confidentiality Covenant.” The applicants correctly point out that Accuracy US was not party to the nominee deed and its obligations. However, this is a pleading error. The counterclaim and additional claim and Lewis 1 must be viewed as a whole without inappropriate line-by-line microanalysis. I prefer to examine the substance. At no point has the respondent otherwise suggested that Accuracy US is party to the nominee deed. This point has no merit in the serious issue to be tried assessment. The drafting error can be rectified with no prejudice to the applicants or anyone else.

Next, the applicants submit that it is unclear how Accuracy US can be fixed with the requisite knowledge. The first point is that the operational working out of the alleged conspiracy falls into the commonly encountered phenomenon of a conspiracy not having a manual or set of preset written instructions. Nevertheless, conspiracies can be proved by inference, and often are.

Second, as to the point that Accuracy US, as a corporate entity, cannot be imputed with the knowledge of alleged human conspirators, the submission in response by the respondent is a sound one: a company acts through the humans within it. The counterclaim and additional claim are clear how the alleged scheme is said to have worked with and through Accuracy US. While the particulars detail the recruitment of a significant number of HKA staff members, it will suffice to provide details of just a selection to illustrate both the pattern of conspiratorial conduct and the level of factual detail in the counterclaim and additional claim:

“Solicitation of HKA employees

48.

Both before and after the termination of their employment with HKA, the Partners attempted to entice employees from HKA to join Accuracy US and/or procured or facilitated the making of such offers by Accuracy US, misusing the HKA Group’s confidential information to do so. The hiring process was directed by the Partners. Further, the Partners and Accuracy US sought to conceal the involvement of the Partners in the recruitment of HKA employees by directing HKA employees to use LinkedIn to contact Mr de Trogoff and/or by Mr de Trogoff contacting HKA employees via LinkedIn, and by operating a sham recruitment process to provide a paper trail for the recruitment of HKA employees.

49.

On 8 August 2024, just two days after signing the Settlement Agreement, Accuracy US sent six HKA employees offer letters and updated Mr Beirise that offers had been made to them:

49.1.

Prarthana Sheth, Associate Director: Ms Sheth primarily supported Mr Courrier on his projects and engagements and had been identified to Accuracy by the Partners in the Courrier Names as an individual to be recruited. Ms Sheth resigned from HKA on 18 July 2024 providing 30 days’ notice and "advising HKA that she planned to spend the next few months following her departure from HKA in India to care for her family and was considering changing careers. The next day, Mr de Trogoff sent Ms Sheth a message [Redacted by order of Dove J dated 22 August 2025]. Just one business day after her employment with HKA ended, notwithstanding her alleged plans to care for her family and consider a career change, Ms Sheth started working for Accuracy US.

49.2.

Kyle Forsythe, Associate Director: Mr Forsythe primarily supported Mr Courrier on his projects and engagements and had been identified to Accuracy by the Partners in the Courrier Names as an individual to be recruited. On 23 July 2024, Mr de Trogoff sent Mr Forsythe a LinkedIn message [Redacted by order of Dove J dated 22 August 2025]. On 25 July 2024, Mr Courrier suggested that Mr Pasco [Redacted by order of Dove J dated 22 August 2025]. On 8 August 2024, Accuracy employee Omar Hamdan (“Mr Hamdan”) emailed Mr Forsythe and stated [Redacted by order of Dove J dated 22 August 2025]. On 12 August 2024, Mr Forsythe gave two weeks’ notice to Tim Overman. Mr Forsythe is now working for Accuracy US.

49.3.

Sarinah Sheppard, Manager: Ms Sheppard primarily supported Mr Beirise on his projects and engagements and had been identified as a key member of staff in the Project K presentation. On 19 July 2024, Mr Beirise told Mr de Trogoff that [Redacted by order of Dove J dated 22 August 2025]. As instructed, on 23 July 2024 Mr de Trogoff sent Ms Sheppard a request to connect on LinkedIn and they spoke on the same day. After the call, Ms Sheppard texted Mr Beirise about the call and Mr Beirise responded that [Redacted by order of Dove J dated 22 August 2025]. On 8 August 2024, she was sent an offer from Accuracy. On 12 August 2024, Ms Sheppard gave two weeks’ notice of resignation to HKA’s Americas People Business Partnering Team. Ms Sheppard is now working for Accuracy US”.

The pattern repeats for, amongst others, Oscar Perez, Lefty Silvera and Randy Bae. The counterclaim and additional claim summarise the overall position on solicitation at para 53 in this way:

“By the beginning of October 2024, eleven former HKA employees had accepted offers and begun working at Accuracy US. Contrary to its obligations under the Settlement Agreement, Accuracy US did not tell HKA of any of the offers of employment it had made to these individuals”.

Looking at these facts as assumed to be true, there are obvious reasonable inferences to be drawn from them about knowledge and intention, both human and corporate. Once done, it is clear how the participation of Accuracy US with the necessary degree of corporate knowledge can be readily and reasonably inferred. On the facts pleaded in the counterclaim and additional claim, and taken to be true, Accuracy US lies at the heart of the unlawful means conspiracy, even if joining later. It is a principal beneficiary of the conspiracy.

It is in this context that the fact of Accuracy US providing the partners with an indemnity, including for legal fees, must be viewed. I have full regard to the observation of Jack J in Tullett Prebon v BGC [2010] EWHC 484 QB at para 142 that the use of indemnities is not per se unlawful and are “regularly requested and given” in certain recruitment situations. The respondent cites certain obiter concerns by Hooper LJ on appeal about the existence of indemnities in the forward contracts in that case (Tullett Prebon v BGC [2011] IRLR 420, paras 58-59). However, I agree with the applicants that this little strengthens the respondent’s argument. I respectfully place no reliance on this.

The applicants submit that the existence of an indemnity is a “thin” basis to infer procurement. However, I find it to be just one factor. It must be viewed in the context of all the other assumed-true pleaded facts. Indeed, in their further skeleton argument (16 March 2026, para 6.5), the applicants recognise that the provision of an indemnity may have a “potential relevance to an allegation of procuring a breach of contract”. I also note the additional information provided by Mr Beirise’s solicitors (filed with skeleton argument) that the indemnity is of a “limited amount” and subject to his compliance with obligations owed by him to HKA.

Nevertheless, it is not disputed that the indemnity exists. I judge that the indemnity gains a significance beyond the nebulous or trivial and it is a reasonable inference, as the respondent seeks to draw, that the granting of the indemnity by Accuracy US provided material support to the partners in their conduct and emboldened their participation in the conspiracy alleged.

It is no part of this court’s function at this point to make definitive findings of fact. The court must examine carefully the totality of the material and determine whether there is a serious issue to be tried, and to do so, in Okpabi terms, focus on the terms of the case that has been particularised and evidenced as the lens to assess its prospects. That is my approach.

The applicants are correct that the cases of the applicants do not stand or fall together. Different conclusions may validly be reached. I have considered the applicants separately. Having done so, I find that there is a serious issue to be tried in the additional claim against Mr Beirise. The prospects of success are more than fanciful and the claim carries some degree of conviction.

Further, I also find that there is a serious issue to be tried in the claim against Accuracy US as procurer of the breach of the nominee deed. I reject the submission that the respondent is “incapable” of discharging the serious issue to be tried burden. I am clear that, to the contrary, the respondent has done exactly that. I find that the respondent has established that each claim is more than merely arguable, and carries the necessary degree of conviction.

I next turn to the next VTB question of whether the respondent in making the application to serve out has identified an appropriate gateway under PD6B.

In oral argument, the applicants took the gateway point. The submission is that the respondent must establish which gateway is relied on and has failed to do so properly. The respondent objects that this ground is not in the application notice. Indeed it is not. The applicants’ submission is framed in their skeleton argument that PD6B 3.1(3) and (3a) make clear that the “defendant” against whom the claim form has been or will be served must be served “otherwise than in reliance on this paragraph”. Thus, the respondent cannot assert that there is between the defendants and the third party (Mr Beirise) and fourth party (Accuracy US) a real issue which it is reasonable for the court to try as grounds for founding a gateway for service on the applicants in the set aside. It is submitted that this is “circular and impermissible”.

The respondent submits that this argument reveals the applicants’ “increasing desperation”. This is because there was simply a typographical error in the Lewis 1 statement relied on by the respondent

The gateway the respondent relies on is one of the “General Grounds” in PD6B 3.1. It provides at subparagraph (3):

“(3)

A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –

(a)

there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b)

the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim”.

The true construction is clear. HKA Global as claimant makes a claim (its Part 20 counterclaim) against two Part 20 “defendants”, Messrs. Courrier and Pasco. There is a real issue to try between HKA Global and the defendants. That has not been disputed for the purposes of the hearing before me. HKA Global, for the purposes of subparagraph 3(b), wishes to serve the claim form on “another person”. Here two further “people”, Mr Beirise and Accuracy US. They are “necessary or proper” parties to the claim against the Part 20 defendants as (1) this court is already seised with the negative declaration claim (brought by Messrs Courrier and Pasco) and Part 20 counterclaim (brought by the respondent against Messrs Courrier and Pasco); (2) Mr Beirise is sued under the same nominee deed as Messrs Courrier and Pasco; (3) Accuracy US is alleged to have induced and/or procured breach of the nominee deed and is thus party to the unlawful means conspiracy.

This ground for setting aside the Judge’s orders is misconceived.

The applicants jointly submit that the following nine factors point to Delaware as the appropriate forum to try the breach of nominee deed dispute:

The question is whether the respondent has shown that England is clearly or distinctly the more appropriate forum (Spiliada; Soriano). I examine the factors identified by the applicants, before turning to some wider points.

Factually true. However, the claim alleges that Accuracy US is involved in a conspiracy to procure breach of a legal agreement with a choice of English law and an exclusive jurisdiction clause in favour of England. As things stand, the conspiracy trial involving Messrs Courrier and Pasco will proceed in the English court. The relevant witnesses will be obliged to give evidence in it. Convenience of witness location is a factor that needs to be weighed, but there is no reason why the witnesses cannot give their account and be challenged in an English court as opposed to Delaware court: there are no language or interpretive difficulties and no obvious location visits necessary. Further, it is undesirable to try co-conspirators in different jurisdictions. As said in Lakatamia Shipping Co Ltd v Su & others [2024] I W.L.R. 746, per Bryan J at para 178(3), it makes “obvious sense” to try all co-conspirators in the same jurisdiction, since “Quite apart from the obvious risk of irreconcilable judgments, it would be wasteful in terms of costs, and potentially prejudicial.” I am bound to say that I found the applicants’ subsidiary submission on this that “it is possible to try co-conspirators in different jurisdictions, although not desirable” lacking in conviction and credibility on these facts. Plainly all these alleged conspirators should be tried together if reasonably possible. Currently, the case against Messrs Courrier and Pasco by virtue of the counterclaim will proceed in the English court, and Mr Beirise has agreed not to dispute the English court’s jurisdiction in respect of the nominee deed.

True, and also true in the opposite direction in respect of any matter arising from the TSA and Delaware law.

Already explained: the respondent’s claim concerns breach of the nominee deed, not the TSA. To frame the TSA as a “threshold issue” misunderstands the nature of the respondent’s claim and the proper sequencing of the nominee deed and TSA. The Delaware court is seised with a dispute about a distinct legal agreement. The Vice Chancellor ruled on the enforceability of Mr Beirise’s RCA. While I can accept, as the applicants submit, that there has been “intensive litigation” in Delaware, that is about a separate legal agreement.

As observed, Mr Brown’s opinion about Delaware law is inadmissible. No other supporting evidence was provided.

The respondent is responding to the claim brought against it by Messrs Courrier and Pasco in the English court and in conformity with the exclusive jurisdiction clause in the nominee deed. The choice of forum by the respondent for its breach of nominee deed claim is consistent with the English court already being seised with proceedings about the nominee deed and consistent with the ruling of Delaware court that England is the “proper forum”. As to the allegation made against the respondent that the issuing of English proceedings was a direct response to an adverse ruling by the Vice Chancellor in the interim decision, the indication of the English proceedings was given to Carter Bond before the Delaware court delivered its ruling on the preliminary injunctive relief. As to the allegation that forum shopping is indicated by HKA Global’s attempt to move the Delaware proceedings to JAMS arbitration, this arose due to clause 12 of Mr Beirise’s executive employment agreement. Ultimately, the Delaware court refused the application due to the waiver evidenced by the issuing of the application for interim relief.

I next consider six wider points.

First, it must be remembered that Accuracy US was created as a vehicle for the partners to conduct business that inevitably would compete with HKA Global. That commercial conflict was purportedly resolved by the TSA which granted partial release from the restrictive covenants under the nominee deed. However, it depended on the partners being able in good conscience to warrant that they knew of no reasons why, competition aside, there would be contravention of their other obligations. The allegation is that in a systematic and sustained way they combined in a conspiracy to deliberately flout their several obligations and entice away a valuable cohort of HKA Global’s staff to join Accuracy US, HKA Global’s new competitor. All parties cannot have but been aware that the nominee deed had the key jurisdictional provisions about English law and English forum. It is difficult in these circumstances to see how it is the respondent that is forum shopping. Of the alleged conspirators, three of the four parties agreed to grant the English court exclusive jurisdiction. The fourth, Accuracy US, is said to have induced and procured highly material and serious breaches of the English law-governed agreement that the other three parties agreed should be tried in England.

Second, the English court is already seised of the application for negative declaratory relief made by Messrs Courrier and Pasco. It is difficult to understand how the counterclaim against them for breach of the nominee deed should not also be determined in the forum they have applied in. In this, it is of note that during correspondence about the claim by Messrs Courrier and Pasco, Carter Bond stated in terms to Fieldfisher (for HKA Global) “we fail to see the relevance of the issues raised in ongoing US proceedings.” There was never an attempt by Carter Bond on behalf of Messrs Courrier and Pasco to assert that Delaware (or the United States more generally) was the appropriate forum for their claim.

Third, the respondent also, and in parallel, alleges breaches of the nominee deed against Mr Beirise. The English court being seised with the Courrier and Pasco proceedings points strongly towards the correct forum for the associated alleged nominee deed breach by Mr Beirise being England.

Fourth, this indication is further reinforced by Mr Beirise having agreed not to dispute the jurisdiction of the English court at clause 37.2 of the nominee deed, whereby he “irrevocably submits and agrees to submit to the jurisdiction of the courts of England.” This must be combined with his waiver and clear undertaking at clause 37.3:

“37.3.

Each party waives (and undertakes not to raise) any objection to the taking of proceedings in the courts of England, whether on the ground of inconvenient forum or otherwise”.

Fifth, and entirely unsurprisingly, the Delaware court has confirmed that the appropriate forum to determine breaches of the nominee deed is England. The Vice Chancellor stated in the memorandum opinion that “The proper forum for determining whether the Nominee Deed was breached is the one chosen by the parties to those documents”. That is England. The Vice Chancellor explains that her findings in the Delaware proceedings are “without prejudice to HKA’s right to proceed in the proper English forum.” It is difficult to conceive how the applicants maintain that the Delaware court is the natural forum to determine nominee deed breach when the Vice Chancellor of its Court of Chancery has said in terms that England is the “proper forum”.

Sixth, the applicants submit that “one cannot assume that [Messrs Courrier and Pasco] accept English jurisdiction in the counterclaim”. This is a difficult argument to maintain, given that these claimants filed their claim for negative declaratory relief in this jurisdiction and the English court is seised with it. The respondent points out that in a consent order sealed on 5 November 2025 (following a hearing before Master Eastman on 30 September 2025) the following was agreed by Messrs Courrier and Pasco:

“UPON reading the letter from the Claimants’ representative to which the Second Defendant’s [HKA Holdings] representative [Fieldfisher] have confirmed their consent

BY CONSENT IT IS ORDERED THAT:

1.

The time for the Claimants to file their Defences to the Second Defendant’s Counterclaim and Additional Claim shall be extended to coincide with each of the later of the time for the Third and Fourth Parties to files their Defences to the Additional Claim once they have been effectively served by the Second Defendant”.

The respondent submits that by such consent order, the claimants have accepted jurisdiction. There is force in this submission. In any event, Messrs Courrier and Pasco have not indicated that they contest the jurisdiction of the court they filed their claim in.

The respondent does not bear the burden of establishing on a balance of probabilities that England is clearly the most appropriate forum. Instead, the question is whether the respondent has “the better of the argument” on the point (Soriano, para 11(3), per Warby LJ).

The factors pointing towards England as the most appropriate forum to determine the breach of nominee deed are significantly more cogent and compelling than those pointing to Delaware. The applicants understate their combined force by stating that the position of Mr Beirise is “nuanced”. In fact, Mr Beirise’s position in respect of forum seems to me to be clear and points strongly to England. That being the case for Mr Beirise along with the already-seised Messrs Courrier and Pasco, the situation of Accuracy US is also clear. The relevant factors pointing to England as the most appropriate forum for the nominee deed dispute include that the English court is already seised with proceedings about the nominee deed; the nominee deed has an exclusive jurisdiction clause in favour of England and a choice of law of English law; the Vice Chancellor of the Delaware court stated that England is proper forum to determine breaches of the nominee deed; Mr Beirise has undertaken not to contest the jurisdiction of the English court in respect of the nominee deed; if, as it should, the counterclaim for breach of the nominee deed takes place before the English court, it would be inappropriate to try co-conspirators separately in Delaware.

While I recognise that there are, as often is the case, factors pointing towards another forum, I have no hesitation in concluding that the respondent has the better of the argument. I also recognise that the English court does sometimes depart from an exclusive jurisdiction clause bargained for by the parties. As the applicants submit orally, this can happen where the strict adherence to the clause may be “oppressive”. There is nothing to indicate that here. There are no strong reasons to depart from what the parties openly bargained for. It repays quoting Lord Bingham’s authoritative exposition of the applicable principle in Donohue v Armco [2001] UKHL 64, at para 24. If the parties have bargained to give a particular court exclusive jurisdiction (here England), and here a claim is brought within the scope of the agreement (not disputed in respect of the nominee deed claim):

“the English court will ordinarily exercise its discretion … to secure compliance with the contractual bargain, unless the party suing in the non-contractual forum (the burden being on him) can show strong reasons for suing in that forum”.

The applicants have not provided “strong reasons” to deviate from the bargained for forum under the nominee deed’s exclusive jurisdiction clause. Lord Bingham explained that the court has a discretion and that there can be “no absolute or inflexible rule governing that exercise”. Then he continued:

“But the general rule is clear: where parties have bound themselves by an exclusive jurisdiction clause effect should ordinarily be given to that obligation in the absence of strong reasons for departing from it”.

I find no strong reasons why the bargained for obligation to litigate in England under English law is not respected and complied with. Turning back to the familiar tests in Spiliada (Lord Goff) and Soriano (Warby LJ) that bind me, I judge that the respondent has clearly established that the most appropriate forum to determine the breach of nominee deed is England. The respondent has the better of the argument.

The applicants apply for the Judge’s two orders to be discharged and set aside on the basis of breach of full and frank disclosure and fair presentation duties. As noted, I am conscious of the observation of Lawrence Collins J in Ophthalmic at para 45:

“The existence of overlapping proceedings in a foreign jurisdiction between the same or related parties (whether pending or prospective) is likely to be a particularly relevant matter which in normal circumstances must be disclosed, and the nondisclosure of which may well lead to the order for permission being set aside”.

Here the existence of the proceedings in Delaware has been properly disclosed to the Judge, but the interim decision of the court not. As earlier noted, the court has a wide discretion when deciding the sanction for breaches of these important duties arising in ex parte applications. Two of the three failures alleged have not been established. As to the third, while I judge it to be material, I do not consider it to be so serious as to justify setting aside the order.

This is because I do not regard this as a deliberate attempt to manipulate the court or gain an unfair advantage tactically. It amounts to a judgement error on the part of the respondent. Having the interim decision in its back pocket two months before the application to serve out, it should have been placed on the table before the Judge. My assessment is that the argument that can be advanced on the back of the interim decision is not determinative or cogent, while recognising its existence and the duty to mention it. As will become clear – and it is often artificial to have to lay out matters in a strictly linear fashion in a judgment – I do not regard the argument from analogy as persuasive. But that does not mean that it should not have been placed before the Judge. I can agree with the applicants that the “context of the relationships is the same”. But that does not amount to a failure to disclose at all, as commented on by Lawrence Collins J.

While I accept the respondent’s submission that these Delaware and United Kingdom proceedings are “discrete”, I am not convinced that the next submission is correct: that they are “hermetically sealed”. There is a great deal of overlap between the underlying facts of the proceedings, although the legal proceedings are indeed distinct in the sense that neither legally affects or determines the other. These are relevant factors in assessing the seriousness of the non-disclosure failure in this case. So while I am not persuaded that this was an attempt to mislead or manipulate the court, it is better viewed as an error of judgement. The fides of the respondent solicitors is illustrated by the fact that the application did not happen in secrecy or without providing the proposed affected parties with the application documentation, as counsel confirmed during the oral hearing. Jones Day were not provided with the application documents before issue, but the respondent’s solicitors alerted Carter Bond to the intention to file the application in a letter dated 3 April 2025:

“We refer to your letter of 2 April 2025, in response to our letter of 31 March 2025 (“our March letter”). We adopt defined terms from those letters.

We are disappointed by your clients' position with regard to our request. Whilst it is possible for our defence to be filed by 8 April 2025, as foreshadowed in our March letter, we confirm that our clients intend to file a counterclaim. For all the reasons stated in our March letter, our clients require some additional time in order to prepare and file their counterclaim.

As you will be aware, concurrent filing of a defence and counterclaim far better serves the Overriding Objective than consecutive filings. In the event that your clients will not consent to the extension request on the terms of our March letter, our clients will be forced to seek the permission of the Court in order to file their counterclaim, leading to additional costs and delay which could have easily been avoided had your clients agreed to the short extension we have requested”.

This disposes of the point that the additional claim was a reaction to “losing” the application for interim relief in Delaware. The intention to apply was heralded before the Vice Chancellor’s decision was handed down. Toulson J (as he then was) explained the difference between an application for permission to serve out and that for a freezing order in MRG (Japan) Ltd v Engelhard Metals Japan Ltd [2004] 1 Lloyd’s Rep 731 (“MRG”). He explained at para 26 the distinction:

“An application for permission to serve out of the jurisdiction is of a very different nature. The general principles about disclosure on without notice applications still apply, but the context is different. The focus of the inquiry is on whether the court should assume jurisdiction over a dispute. The court needs to be satisfied that there is a dispute properly to be heard (i.e. that there is a serious issue to be tried); that there is a good arguable case that the court has jurisdiction to hear it; and that England is clearly the appropriate forum. Beyond that, the court is not concerned with the merits of the case”.

In MRG, Toulson J (para 43) stated that even if he had found a material non-disclosure, he would have nevertheless refused to set aside the order to serve out. However, each case turns acutely on its facts. I have carefully considered the situation here following what I have found to be a material non-disclosure and associated failure of fair presentation. As said aptly in Crossroads Corporate Finance (UK) Limited v Ontario Management & Ors. [2025] EWHC 1011 at para 49, citing Carr J in Tugushev at para 7(vi), while disclosure must be full and frank, “there will be degrees of relevance, and a due sense of proportion must be kept”. I must assess the degree of relevance and significance of the non-disclosure.

Having done so, and exercising the court’s discretion, I decline to set aside the order to serve out on the basis of the failures connected to the interim decision. The appropriate and proportionate sanction is in costs, about which I will hear further argument during consequential orders following the handing down of this judgment. In my opinion, to set aside the order granting permission to serve out would be disproportionate to the nature and extent of the non-disclosure and contrary to the overriding objective of dealing with the case justly. As Carr J said at proposition (xiii):

“The interests of justice may sometimes require that a freezing order be continued and that a failure of disclosure can be marked in some other way, for example by a suitable costs order. The court thus has at its disposal a range of options in the event of non-disclosure”.

In Marinakis, the court said at para 20 that:

“… the court has a discretion to set aside the order for service and require a fresh application, or to treat the claim form as validly served and deal with the non-disclosure by a costs order: NML Capital Ltd v Republic of Argentina [2011] UKSC 31, [2011] 2 AC 495, [136] (Lord Collins)”.

Toulson J in MRG cited with approval Kerr J in BP Exploration Co. (Libya) Ltd. v. Hunt [1976] 3 All E.R. 879 (which concerned an application for leave to serve out of the jurisdiction). Kerr J said at 893:

“In my view, a failure to refer to arguments on the merits which the defendant may seek to raise in answer to the plaintiffs claim at the trial should not generally be characterized as a failure to make a full and fair disclosure, unless they are of such weight that their omission may mislead the Court in exercising its jurisdiction under the rule and its discretion whether or not to grant leave”.

I find this approach instructive. I do not consider the omission of the arguments by analogy omitted by the respondent to “mislead the Court in exercising its jurisdiction”. Finally, I am assisted by the exposition by Andrew Smith J in Dar al Arkan v Al Rafai [2012] EWHC 3539 Comm (“Dar al Arkan”) at para 149:

“149.

When making decisions of this kind the court should, of course, weigh all relevant considerations, and they include importantly these:

i)

The culpability of the applicant (and his advisors) with regard to the breach, and in particular the extent of the breach and whether it was deliberate;

ii)

The importance and the significance to the outcome of the application of matters not disclosed to the court;

iii)

The merits of the applicant’s case; and

iv)

The nature of the order obtained ex parte.

When assessing this last consideration, the court has regard to the consequences of the order for the person(s) against whom it is to be made: see Payabi v Armstel Shipping Corp (The “Jay Bola”), [1992] QB 907, 918B-D. Christopher Clarke J observed in the Millhouse Capital case (loc cit at para 104) that the general rule is applied particularly strictly in the case of freezing and seizure orders. On the other hand, with regard to orders for service of proceedings out of the jurisdiction the cases referred to in Gee, Commercial Injunctions, (5th Ed, 2004) para 9.001, fn6 make it clear that “In principle the same duty arises in relation to [an order to serve out of the jurisdiction]. But in practice such oversights are more likely to be penalised only in the form of costs, since it would not be right to drive the [claimants] to an inappropriate jurisdiction or to bar a bone fide claim from a proper one. To that extent the practice may be different in relation to [order for service out of the jurisdiction] from cases involving injunctions”: A/A D/S Svendborg v Maxim Brand, (CA, unreported, 23 January 1989) [“Svendborg”], per Kerr LJ. More specifically, in these cases the court will not readily treat a failure to anticipate potential defences as a breach of the duty to make full and frank disclosure: see Ophthalmic Innovations International (UK) Ltd v Ophthalmic Innovations International Inc [2004] EWHC 2984 (Ch) at para 44”.

What I derive from these authorities is that there is a high duty of full and frank disclosure in cases where there has been a departure from the principles of fairness due to the application being made – here necessarily having to be made – in the absence of the affected parties. However, while that high duty is of general application, the consequences of a failure to observe that duty may be different depending on the context of the ex parte or without notice application: freezing order versus serve out application. I draw on the helpful list of factors identified in Dar al Arkan. I judge that the breach was not deliberate and limited in extent. It was not of great significance and importance to the outcome of the application. Put another way: I do not find that the Judge was likely to have reached a different conclusion should he have known of the interim decision. I dealt with the respondent’s (serve out applicant’s) case in the analysis of serious issue to be tried. I judge it to be sufficiently cogent not to raise concerns under that factor. The claims against Mr Beirise and Accuracy US are plainly not unmeritorious. As to the order obtained, along with the associated alternative service order, it seems to me that maxim in Svendborg is relevant here: they are not injunctions.

I have fully in mind the precept in St Merryn Meat Ltd and ors v Hawkins and ors [2001] CP Rep 116 (“St Merryn”) about “the necessity to demonstrate to the Claimants (and other applicants for without notice interim orders) the gravity of their duty of disclosure and the consequences of ignoring them” (para 107). Here, the respondent did not wilfully ignore its disclosure duty, but misconceived it in one relevant respect in relation to the Vice Chancellor’s interim decision. It was regrettable, but not significant, nor deliberate, and nowhere near grave enough to justify setting aside the Judge’s order. Purely by way of illustration, in St Merryn the claimants had advanced a “deliberately false and dishonest case” and the relief they had obtained was in “flagrant breach of their obligations of absolute good faith” (para 108), with the court being seriously misled by false evidence when, as the Deputy Judge found, a defendant’s home had been “bugged” entailing that this “arguably illegal” conduct needed disclosing (paras 75-78). The gravity of the bad faith breaches outweighed the established good arguable case and risk of dissipation. I have no difficulty in concluding that the instant case is a world away from such breaches of duty in a “deliberately false and dishonest case” (para 109), and is not sufficient to require set aside.

As long ago as the Brink’s Mat case (Brink's Mat Limited v Elcombe [1988] 3 All ER 188), the Court of Appeal established that one of the purposes of discharging an injunction obtained through non-disclosure is to ac

“as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty.” (per Balcombe LJ at 193J).

As Balcombe LJ continued, this is a “judge-made rule” and it is vital not to allow it to operate as an “instrument of injustice” (194A). Thus, the court retains a discretion to hold that a material non-disclosure is not “fatal”, but can be reflected in other ways. Balcombe LJ approved the reasoning of Dillon LJ in Lloyds Bowmaker Limited v Britannia Arrow Holdings PLC (Lavens, third party) [1988] 3 All ER 178, 1349C-D, that if there is a discretion to discharge the order, there must be a concomitant discretion not to. This seems to me to be precisely the situation here: balancing everything, I judge that the material non-disclosure is not fatal and I exercise my discretion not to discharge, but mark the failure in costs

The disclosure and fair presentation breaches of duty should be marked in costs, not order discharge.

Summarising greatly, the short answers to the issues the court is asked to determine are as follows:

The respondent’s breaches of disclosure obligations must be marked in costs. I direct the parties to agree an order to reflect the terms of this judgment.