On 25 May 2012 Mr Justice Burton handed down judgment rejecting RBS's application for anti-suit injunctions on the grounds that RBS lacked clean hands and dismissing Highland's application to set aside a previous judgment for fraud. So far as the advocates are aware, this is the first time that an application for anti-suit injunctions has proceeded to trial, and the only case to consider the equitable maxim that "He who comes to equity must come with clean hands" in the context of an anti-suit injunction.
The claim arose after proceedings were started in Texas which RBS said fell within the scope of an exclusive jurisdiction agreement and amounted to a collateral attack on a previous decision of Mr Justice Burton between RBS and Highland. Highland's defences included that RBS's witness had lied to the Court at the previous quantum trial, that a previous summary judgment on liability was liable to be set aside for RBS's fraud and that accordingly RBS was not entitled to an injunction because it lacked clean hands. The judge found that the jurisdiction clause provided that the English court had exclusive jurisdiction and that the Texas proceedings were within the scope of that clause. However, he also found that RBS's witness had lied to him at the quantum trial, and had lied again at this trial in insisting that his previous evidence was not dishonest. The judge found that this prevented RBS from seeking equitable relief.
Highland was represented by Stephen Auld QC, Ben Strong and Laurence Emmett.