Permission to enforce cross-undertaking in damages: William Day and Maud Mullan act for successful applicant

On 28 August 2026, Nigel Cooper KC (sitting as a Deputy High Court Judge) handed down the latest judgment in the ongoing Apollo XI Ltd v Nexedge Markets Ltd litigation, giving Nexedge permission to enforce the cross-undertaking in damages given by Apollo to secure a without notice freezing injunction: [2026] EWHC 2240 (Comm).

The injunction was discharged last year by Saini J for serious breaches of full and frank disclosure by Apollo: [2025] EWHC 1488 (KB). However, Apollo contested permission to enforce the cross-undertaking on the basis that no arguable losses were caused to Nexedge, a contracts for difference (or CFD) broker. Dismissing Apollo’s case, the Deputy Judge concluded there was a presumption that permission to enforce would be given, and that Apollo’s case required a “level of evidential analysis” at the permission stage that was “contrary to the authorities” (at [37]). The judgment contains a helpful summary of the test for permission to enforce a cross-undertaking at [24]-[33].

The Judge gave Nexedge permission, finding at [53]-[62] that (1) there was an arguable case that Apollo had intended to cause Nexedge harm by the freezing injunction, (2) credible evidence of loss had been adduced by Nexedge, (3) a “mini trial” in respect of that evidence was not permissible, and no “knock-out” blow had been identified by Apollo, (4)  there was an arguable case that the ‘own wrong’ principle prevented Apollo from relying on the litigation (rather than the injunction) as causative of any loss suffered by Nexedge, and, (5) in any event, the injunctive relief and the litigation arguably could be regarded as concurrent causes of the loss.

The judgment can be found here. William Day and Maud Mullan are instructed for the successful applicant, Nexedge, by Ravi Nayer, Catalina Diaconeasa and Rachel Wong at Bryan Cave Leighton Paisner LLP.