The Commercial Court has granted the first anti-suit injunction (ASI) to enforce the new statutory right to be sued in England under Section 15C of the Civil Jurisdiction and Judgments Act 1982 (CJJA 1982). Section 15C was introduced by regulation 26 of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019/479 pursuant to the European Union (Withdrawal) Act 2018. It provides, amongst other things, that:
“If the employee is domiciled in the United Kingdom, the employer may only sue the employee in the part of the United Kingdom in which the employee is domiciled (regardless of the domicile of the employer).”
The claimant employee, Mr Gagliardi, issued proceedings in the Commercial Court claiming outstanding bonus amounts which he says are due to him. His employer, Evolution Capital Management LLC, commenced proceedings in the State of New York seeking a declaration that Mr Gagliardi was not entitled to the bonus and seeking other relief. Mr Gagliardi to applied for an ASI in the Commercial Court.
The ASI application was heard on an expedited basis. Whilst noting that the previous right to be sued only in an appropriate Court under the Brussels Regulation had been “controversial”, the Court granted Mr Gagliardi’s application for an ASI. Mr Justice Foxton held:
- the Court had personal jurisdiction over Evolution under s.15(C)(2) of the CJJA 1982;
- Samengo-Turner v J&H Marsh & McLennan (Services) [2008] ICR 18 and Petter EMC Europe Ltd [2015] CP Rep 47 decided under the Brussels Regulation were the subject of both “strong criticisms” and “strong support” and were in any event binding;
- Section 15(C)(3) was intended to preserve the employee protection previously afforded by the relevant parts of the Brussels Regulation; and
- the court was satisfied to a high degree of probability that Mr Gagliardi was an employee for the purposes of section 15(C) and entitled to protection in circumstances where he did not have any or any significant influence over Evolution’s affairs (Alta Trading UK Ltd v Bosworth [2021] ICR 1358 considered).
Accordingly, the Court granted Mr Gagliardi’s application for anti-suit relief (Gagliardi v Evolution Capital Management LCC [2023] EWHC 1608 (Comm), Judgment 29 June 2023).
Daniel Oudkerk KC represented Mr Gagliardi instructed by Mr Nick Wilcox of BDBF LLP.
The judgment can be found here.
