UK Judge Steps into Currenex Lawsuit
Posted by Colin Lambert. Last updated: June 30, 2022
In a somewhat bizarre side story to the ongoing class action litigation against Currenex, State Street, HC Tech and Goldman Sachs, a UK judge has filed a declaration with the Southern District of New York court in opposition to an attempt by Currenex and State Street to have a proportion of the charges heard in a London court, rather than in New York.
In its motion to dismiss the case, the defendants argue that because XTX Markets was trading in London, the portion of the charges brought by that firm should be heard there. This would, a US legal source says, separate XTX from the co-litigants, Edmar Financial and Irish Blue & Gold, both of whom are defunct trading firms, thus “probably making it easier to get the case dismissed in the US”.
As part of its argument for splitting the case, the defendants employed a UK-based lawyer Jasbir Dhillon, who decided, after going through the plaintiffs’ claims “on a generous interpretation of clause 23 of the Currenex Services Agreement” that the majority of claims represent a “controversy” rather than a case.
As a basis for his opinion, Dhillon used a UK case Fiona Trust as a precedent, however the judge in that case, Lord Hoffman, who provided the written judgement, has disputed his opinion to the New York court.
Lord Hoffman observes that Dhillon’s argument was that the “underlying allegation” in the claims of fraud and conspiracy to defraud are “that Currenex simply did not provide the services it had contracted to provide”, but adds, “That is a possible way of looking at that allegation”, adding, “It is however rather like saying that a technician engaged to repair your computer who takes the opportunity to insert a device enabling him to empty your bank account has not provided the services he contracted to provide. That might be thought, for some purposes at least, to be an inadequate description of your complaint.”
On the attempt to split the case and have parts heard in the UK, Lord Hoffman argues that XTX is suing “simply as a user of the platform” and that all of some of the parties to the allegation “may have no connection with England”.
He adds that, under English law, such an attempt to split jurisdictions would not be permitted “unless there are strong reasons” for doing so.
Concluding his declaration, Lord Hoffman writes, “I do not think that, even if Mr Dhillon is right in his construction of clause 23 of the Agreements, an English court would grant an anti-suit injunction to restrain XTX’s proceedings in New York. The proceedings are by no means limited to XTX’s claims. It is a class action on behalf of a large number of plaintiffs as well as two additional named plaintiffs, none of whom are parties to the English jurisdiction clause.
“The claims of others arise out of the same facts as the claims of XTX. But they would, if a stay or anti-suit injunction were granted, have to be tried separately in different courts,” he continues. “Only two of the six defendants were parties to the clause. The New York court would have jurisdiction to grant the remedies claimed under the Clayton Act and RICO. An English court would not. The risks of inconsistent decisions and multiplication of costs are obvious.”