Diageo DV Limited v NIO S.R.L. (in liquidation) [2026] EWHC 1198 (Comm)

[2026] EWHC 1198 (Comm)Case No LM-2025-000222
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 19/05/2026
Before: Anna Dilnot KC (sitting as a Deputy High Court Judge)
Between
Diageo DV LimitedClaimantNIO S.R.L. (in liquidation)Defendant
Stewart Chirnside (instructed by Bristows) for Claimant for The Defendant did not appear and was not representedHearing Hearing date: 17 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 19 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Anna Dilnot KC (sitting as a Deputy High Court Judge) :

[1]This is an application for summary judgment and a final anti-suit injunction to restrain the continuation of proceedings brought by the Defendant against the Claimant before the Italian courts, which proceedings are said to have been commenced and pursued in breach of an exclusive jurisdiction agreement in favour of the English Court.[2]The Claimant, Diageo DV Limited (‘Diageo’) is an English company which carries on business producing and distributing alcoholic beverages worldwide. The Defendant, Nio S.R.L (in liquidation) (‘Nio’) is an Italian company which is now in voluntary liquidation. This dispute arises in relation to a Share Purchase Agreement made between, insofar as relevant, Diageo and Nio dated 23 November 2023 (the ‘SPA”). By the SPA, Diageo agreed to purchase Nio’s category “A” share (the ‘A Share’) in Niococktails s.r.l (‘Niococktails’) for consideration consisting of(i) a completion payment of €2.75 million(ii) a deferred payment of €1.25 million and(iii) an ‘exit payment’ of at least €1 million in certain circumstances. In brief summary, the dispute arises because Nio has objected to Diageo having withheld a portion of the deferred consideration otherwise due to Nio, the withheld amount representing part of a sum paid by Niococktails in settlement of a potential claim or liability in respect of which Nio is said to be liable to indemnify Diageo. Following Nio and Diageo failing to agree the amount of the estimated liability or Diageo’s right to withhold it, Nio commenced proceedings against Diageo before the Civil Court of Milan on 26 March 2025.[3]The SPA contained, at clause 24.2, a jurisdiction agreement which is said by Diageo to be an exclusive jurisdiction agreement in favour of the English Court. Diageo has claimed that the proceedings brought by Nio in Italy constitute a breach of that jurisdiction agreement.

The Contracts

[4]There are three relevant contracts:(i) the SPA,(ii) a Deed of Transfer dated 1 December 2023 which was executed by the parties in accordance with paragraph 1(a) of Schedule 3 of the SPA and in agreed form for the purposes of satisfying the formal requirements of section 2470 of the Italian Civil Code and pursuant to which the A Share in Niococktails was transferred to Diageo, and(iii) a Settlement Agreement between Niococktails and various entities associated with Conor McGregor (a mixed martial arts professional), which was entered into on 2 August 2024 and pursuant to which Niococktails paid those entities a settlement sum of USD 1 million.

The SPA

[5]In so far as relevant, the SPA provided as follows: i) Under clause 3.1, the purchase price payable by Diageo consisted of:(1) a completion payment of €2.75m (‘Completion Payment’);(2) a deferred payment of €1.25m payable within 10 business days of 31 December 2024 (‘Deferred Payment’); and(3) an Exit Payment of at least €1m which was payable if Diageo (or another company in the Diageo Group) acquired the entirety of Niococktails (or there was no exit) prior to 1 December 2027 (‘Exit Payment’). ii) Under clause 5.2(b)Nio agreed, subject to a €200,000 excess under clause 7.5, to indemnify each member of the Diageo Group and each Group Company (i.e. Niococktails and its subsidiaries) in respect of any amount paid by them by way of settlement or compromise of a Relevant Claim. A Relevant Claim was defined in clause 5.1to include any dispute or claim arising out of or in connection with the termination or non-performance by any Group Company of any arrangements (including any letters of intent) entered into prior to Completion between any Group Company and any of Proximo Spirits, Inc, Eire Born Ventures LLC, McGregor Sports and Entertainment LLC, McGregor Sports and Entertainment Limited or any of their Affiliates (together the “Proximo/McGregor Entities”). iii) Under clause 5.4, Diageo agreed to use reasonable endeavours to ensure that Niococktails: (i) gave due regardto settling or compromising any Relevant Claim by making “a limited purchase” of products from Proximo (i.e. Niococktails would purchase alcohol from Proximo); and (ii) consulted with Nio prior to entering into any settlement agreementwhich would give rise to a claim against Nio under clause 5.2(b). iv) Under clause 6.2, Diageo was entitled to withhold a sum equal to the ‘Estimated Liability’ in respect of any ‘Unsubstantiated Claim’ from the Deferred Payment and/or the Exit Payment (defined as any ‘Future Payment’), as long as Diageo notified Nio in writing of the Unsubstantiated Claim before the Future Payment became due. An ‘Unsubstantiated Claim’ was defined as being any claim which was not a ‘Substantiated Claim’, the latter being any claim which had been agreed in writing between the parties as to both liability and quantum or finally determined by a court of competent jurisdiction. Clause 6.2 provided that Diageo was entitled to withhold the amount of the Estimated Liability until and to the extent that the Unsubstantiated Claim became a Substantiated Claim. An Estimated Liability was defined as “a genuine and bona fide estimate” of Nio’s liability to Diageo in respect of any Unsubstantiated Claim. Diageo and Nio were required to use all reasonable endeavours to agree the Estimated Liability as soon as practicable and, in any event, no later than the date the relevant Future Payment became due for payment. If the parties were unable to agree, the determination of the Estimated Liability was to be referred to an independent barrister at the request of either party (the “Counsel Determination Mechanism”). The barrister instructed pursuant to clause 6.2 was to provide an opinion as to whether, on the balance of probabilities, the Unsubstantiated Claim was more likely than not to succeed, together with a determination of the Estimated Liability. On delivery of such an opinion, Diageo was only entitled to continue to hold the ‘Withheld Amount’ if the Unsubstantiated Claim was, on the balance of probabilities, more likely than not to succeed. v) Clause 6.2(c) provided that Counsel’s determination would be final and binding on both parties, but that it would not prejudice Nio’s ability to challenge and contest any ‘Claim’ before the courts in accordance with clause 24. A ‘Claim’ was defined as any Warranty Claim and any claim under any of the indemnities set out in clause 5. Therefore, a determination by Counsel in respect of the ‘Withheld Amount’ was not to preclude Nio’s ability to challenge its alleged obligation to indemnify Diageo under clause 5 before the English Court. Following an indemnity claim becoming ‘Substantiated’ by the English Court, there is to be a form of accounting between the parties whereby Nio repays any excess paid to it by Diageo (which operates as a reduction in the purchase price) and Diageo is to pay to Nio any amount by which the Withheld Amount exceeds the amount due to Diageo under the Substantiated Claim (clauses 6.3 and 6.4). vi) Clause 24included an English choice of law clause and a jurisdiction agreement in favour of the English court (the terms of which are fully set out below). vii) Schedule 3 to the SPA set out Nio’s obligations on Completion including at paragraph 1(a)(i)that the parties would execute a Deed of Transfer in agreed form before a notary “only” for the purposes of complying with Section 2470 of the Italian Civil Code and without novation or modification of the SPA, which was to remain in full force and effect in accordance with its terms.[6]Clause 24 of the SPA provided as follows:
“24.1 This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with English law. 24.2 Each party irrevocably agrees that any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation will be determined by the courts of England.”
[7]Clause 24.2 does not state in terms that the jurisdiction of the English Court is exclusive, however, Diageo’s position is that clause 24.2 constitutes an exclusive jurisdiction agreement. I agree, for the following reasons: i) The Convention on Choice of Court Agreements 2005 (‘The Hague Service Convention’) applies to clause 24 of the SPA, this being an international case and a civil and commercial matter for the purpose of the Convention. Clause 24 is therefore deemed to be an exclusive ‘choice of court agreement’ by Article 3(b) of the Hague Service Convention, the parties to it not having expressly provided otherwise. ii) In the alternative, it is a question of interpretation, governed by the law applicable to the jurisdiction agreement, whether a jurisdiction clause is ‘exclusive’. In this case, English law applies to the SPA by reason of clause 24.1, and the law chosen by the parties to expressly to govern the contract will also normally govern the jurisdiction agreement, see Enka Insaat VE Sanayi AS v OOO Insurance Company Chubb [2020] 1 W.L.R. 4117 at [53], [254], cited in Dicey, Morris & Collins on the Conflict of Laws, 16th Ed (‘Dicey’). I find that clause 24.2 is governed by English law – there is no good reason why the parties would have intended some other (unidentified) law to apply to the jurisdiction agreement. iii) That being the case, the correct approach is to ask whether, on its proper construction, clause 24.2 obliges the parties to resort to the English Court, irrespective of whether the word “exclusive” is used. iv) In my view, that is precisely what clause 24.2 does: it is expressed in mandatory terms i.e. “any dispute or claim … will be determined by the courts of England.” v) Further, where a jurisdiction agreement is governed by English law, the Court may conclude that, if the nominated court would have had jurisdiction by right in the absence of the agreement on jurisdiction (as it does in this case by reason of the jurisdictional gateway at CPR PD6B para 3.1(6)), the agreement would be idle unless it conferred exclusive jurisdiction on the nominated court, see Dicey at [12-073] and [12-074]. That reasoning applies also in this case. Deed of Transfer[8]The terms of the Deed of Transfer included the following, in so far as relevant: i) Article 1 provided that Diageo accepted and purchased full ownership of the A Share at the price determined in accordance with Article 2. ii) Article 2 provided that the Completion Payment of €2.75m would be paid to Nio as consideration for the sale of the A Share and all other obligations assumed by Nio under the Deed of Transfer, on the signing of the Deed of Transfer. Article 2 also recorded that the parties agreed that additional sums “may be payable” by Diageo to Nio, “to be paid as a supplement to the purchase price of Share A …depending on what is separately agreed between the parties”. Diageo contends this is a reference to the Deferred Payment and Exit Payment provided for by the SPA. I agree with that interpretation of Article 2. iii) Article 5 clarified that the Deed of Transfer did not derogate from any previous agreements reached between the parties (i.e. the SPA). iv) Article 8was an exclusive jurisdiction clause in favour of the Italian courts which provided that:
“Any dispute concerning this agreement, as well as any amendments and/or additions thereto, including, but not limited to, those relatingto its validity, effectiveness, interpretation, execution and termination, shall be referred to the exclusive jurisdiction of the Court of Milan, without prejudice to the mandatory provisions of law.”

The Settlement Agreement

[9]Prior to the execution of the SPA, in around August 2023, Niococktails had entered into a letter of intent and a promotional services agreement with the Proximo/McGregor Entities. As envisaged under clause 5 of the SPA and following Completion, Niococktails entered into discussions with the Proximo/McGregor Entities to terminate these prior agreements. Diageo says those prior agreements were incompatible with its acquisition of Niococktails or otherwise not commercially viable following that acquisition.[10]In response, the Proximo/McGregor Entities threatened to bring claims of up to USD12 million against Niococktails for damages and lost profits. Following negotiations, on 2 August 2024 Niococktails entered into a settlement agreement with the Proximo/McGregor Entities (the “Settlement Agreement”) settling those Entities’ claims in return for a payment of USD1 million (the “Settlement Sum”). The Settlement Sum was paid by Diageo to the Proximo/McGregor Entities between 7 and 15 August 2024.[11]By letter dated 18 November 2024, Diageo notified Nio that it had settled with the Proximo/McGregor Entities for €1 million and gave notice that it intended to withhold €800,000 from the Deferred Payment as an Estimated Liability which, at that point, was due to be paid within 10 Business Days of 31 December 2024. Diageo requested that Nio agree the calculation of the Estimated Liability, or provide reasons and any alternative proposals.[12]The amount of €1 million was an error given the Settlement sum was USD 1 million. Diageo corrected that error in a letter to Nio dated 28 November 2024, in which letter it also explained that the Estimated Liability was €750,000, being USD 1 million less the €200,000 excess stipulated by clause 7.5(a) of the SPA converted to Euros at an exchange rate of USD 1:EUR 0.95. Diageo again requested Nio’s agreement to the calculation of the Estimated Liability.[13]By letter dated 11 December 2024, Nio objected to Diageo withholding the Estimated Liability from the amount of the Deferred Payment. A number of reasons were given for its objection, in particular allegations that(i) Diageo had failed to provide sufficient information, including the Settlement Agreement,(ii) Diageo had failed to comply with clause 5.4 of the SPA which required Diageo to have due regard to settling the claim through the purchase or products from the Proximo/McGregor entities,(iii) Diageo’s calculation of the Estimated Liability was not a genuine and bona fide estimate of Nio’s liability were the Unsubstantiated Claim to be resolved in Diageo’s favour, and(iv) Diageo had no right to withhold any portion of a Future Payment without Nio’s agreement or a prior determination of the Estimated Liability via the Counsel Determination Mechanism.[14]Nio’s letter of 11 December 2024 was marked as being “without prejudice”. However, Nio has expressly referred to that letter in the Italian proceedings brought by it and has therefore waived any right it may have had to assert privilege in the letter (and Diageo does not assert any such right on its part). I also note that the letter was referred to in Diageo’s evidence in support of its application for the Interim Anti-Suit Injunction: it was exhibited to the Witness Statement of Anna Cook of Bristows dated 11 June 2025. That statement made express reference to the letter and the fact that while it was marked “Without prejudice”, Nio had referred to it in the Italian proceedings and in any event Diageo did not consider that it was properly to be considered as a “without prejudice” communication. David Bailey KC did not take issue with that analysis in his judgment dated 6 August 2025, and I agree with it.[15]On 16 December 2024 Diageo responded to Nio, via its English solicitors, Bristows, on an open basis proposing a call on 18 December 2024 to discuss the issues raised by Nio. The letter also explained that in calculating the amount of the Estimated Liability, Diago had used an exchange rate obtained from public sources but was open to discuss any reasonable commercial rate of exchange and invited proposals.[16]On or around 16 or 17 December 2024, Diageo provided Nio with a ‘Settlement Chronology’ which gave details of the negotiations between Niococktails and the Proximo/McGregor Entities. This chronology was marked “without prejudice”. I raised this with Counsel for Diageo during the hearing and was informed that Diageo did not consider it to be a “without prejudice” communication given it had been referred to in open correspondence. It is unclear under cover of what communication the chronology was provided by Diageo to Nio, although it was referred to by Nio in a letter to Diageo dated 18 December 2024 which was marked “without prejudice”, albeit responding to Diageo’s open letter of 16 December 2024. However, having reviewed the correspondence between the parties relating to Diageo’s notice of withholding, I have formed the view that neither that correspondence nor the chronology is properly characterised as being “without prejudice”: i) There is no discernible attempt to settle the dispute outside of the scope of the requirement at clause 6.2 of the SPA to seek to reach agreement on the amount of the Estimated Liability, and the communications constitute no more than an attempt to fulfil the contractual machinery. ii) The correspondence constitutes either assertions of Nio’s alleged rights or attempts to argue the case, rather than an attempt to negotiate, which is not privileged, see Buckinghamshire CC v Moran [1989] 2 All E.R. 225, CA. iii) Likely for that reason and while Nio marked its correspondence “without prejudice”, Diageo did not (save for the chronology).[17]The chronology records that on 4 January 2024, Niococktails proposed to representatives of the Proximo/McGregor Entities that the dispute be settled on the basis of(i) a cash payment to Mr McGregor of €165,556 and(ii) the purchase of 16,600 litres of tequila from Proximo. The chronology further records that on 17 January 2024 the Proximo/McGregor Entities rejected that proposal and made a counterproposal that Niococktails pay them USD 5 million in cash. Proximo is recorded as saying that unless Niococktails was interested in transacting on the terms set out in the expired Letter of Intent, it was not interested in the supply [of alcohol] being part of any settlement.[18]The chronology records that Niococktails tried again on 24 January 2024 to settle on terms that it would purchase tequila from Proximo, offering to acquire Niococktails’ entire projected requirement for tequila for two years with a minimum guarantee on purchase worth at least USD 250,000 in gross profit. On 14 February 2024 the Proximo/McGregor Entities rejected that offer and again stated they were not open to supply being part of any settlement. The chronology goes on to indicate how the parties reached the Settlement Sum of USD 1 million.[19]The chronology further records that on 28 June 2024 Diageo informed Nio of the outcome of the negotiations and invited Nio’s comments, and a discussion between representatives of Niococktails, Diageo and Nio took place on 8 July 2024. On 17 July 2024, Niococktails invited final comments on the proposed settlement from Luca Quagliano and Alessandro Palmarin, being the founders and former directors of Niococktails.[20]The Settlement Agreement was executed on 2 August 2024.[21]Going back to the post ‘notice of withholding’ correspondence between Diageo and Nio, in a letter dated 18 December 2024, Nio maintained its objection to Diageo withholding any amount from the Deferred Payment on the basis that Diageo had failed to provide Nio with sufficient information to allow it properly to consider the position, including in relation to the exchange rate.[22]On 31 December 2024, Bristows emailed Nio (on an open basis) copies of the payment confirmations relating to the sums paid by Niococktails to the Proximo/McGregor Entities. Diageo also asked what additional information Nio required to allow it to calculate and propose any alternative exchange rate. Diageo declined to provide Nio with a copy of the Settlement Agreement on the basis that it was confidential to the parties, and did not contain any additional information helpful to the determination of the Estimated Liability.[23]The Settlement Agreement has not been exhibited to the evidence served by Diageo in support of its application for summary judgment and a final anti-suit injunction on the basis that it is confidential and its terms do not bear upon the issues before me. Were the terms of the Settlement Agreement relevant to the matters I have to decide then the confidentiality of the document would not be an adequate reason not to provide it to the Court. However, I have concluded that it is appropriate to proceed without sight of the document on the basis that the only relevant question before me is Diageo’s entitlement to withhold the amount of the Estimated Liability from the amount of the Deferred Payment otherwise payable by Diageo. The existence or otherwise of that entitlement will depend upon(i) whether Diageo used reasonable endeavours to ensure Niococktails (a) gave due regard to settling the Relevant Claim by purchasing products from Proximo, and (b) consulted Nio prior to Niococktails entering into any settlement agreement rendering Nio potentially liable under clause 5.2(b) of the SPA, and(ii) Diageo having paid the amount of the Estimated Liability. The terms of the Settlement Agreement will not bear upon (a) and Diageo provided to Nio proof of payment of the Estimated Liability on 31 December 2024.[24]Nio further replied on 7 January 2025 (once again marked “without prejudice”) to deny Diageo’s right to withhold any sum in respect of an Estimated Liability and alleging breaches of clause 5.4 of the SPA.[25]Bristows, for Diageo, responded in an open letter on 8 January 2025. Diageo explained, among other things, that Nio had been provided with all the information it needed and in particular that the chronology had shown Niococktails having due regard to making a purchase from Proximo as part of the settlement, and had also shown that Niococktails had consulted with Nio prior to entering into the Settlement Agreement. That being the case, it was said that both limbs of clause 5.4 of the SPA had been complied with and any breach of that provision was denied.[26]Nio wrote to Diageo (again marked “without prejudice”) on 10 January 2025 rejecting all of Diageo’s points and making the argument that Diageo was not entitled unilaterally to withhold any amount in respect of an Unsubstantiated Claim, with clause 6.2 of the SPA requiring agreement of the amount of the Estimated Liability or a determination of the same by counsel. Bristows responded on behalf of Diageo on 14 January 2025 disputing the characterisation of Nio’s correspondence as “without prejudice” on the basis that there was no genuine attempt to settle a dispute and the correspondence simply articulated Nio’s view of the operation of the SPA. The letter also explained what Diageo said was the contractual basis of its right to withhold payment, and moreover notified Nio that the English Court had exclusive jurisdiction over any dispute or claim arising out of or in connection with the SPA.[27]On or around 14 January 2025, Diageo paid Nio the sum of €469,992 constituting the amount of the Deferred Payment of €1.25 million less €780,008, being the Euro equivalent of the Settlement Sum after deducting the €200,000 excess from that Sum. The exchange rate used was the Bank of America spot rate at the date of the payment to Nio.[28]Neither party invoked the Counsel Determination Mechanism before 14 January 2025, and it has not been triggered by either party to date.

The Italian Proceedings

[29]On 26 March 2025, Nio commenced proceedings before the Court of Milan by a Writ of Summons of that date (‘the Writ’). The principal complaint made by Nio in the Writ was that Diageo had wrongfully withheld the sum of €780,008 from the Deferred Payment, and it brought the proceedings before the Court of Milan in order to “obtain full payment of the agreed Second Instalment” (being a reference to the Deferred Payment under the SPA). While in the Writ Nio asserted that by the Deed of Transfer Diageo had undertaken to pay Nio the “subsequent instalments of the agreed consideration, referring for the regulation of the terms and conditions of payment to the [SPA] …”, by which it meant the Deferred Payment and the Exit Payment, that was incorrect. Article 2 of the Deed of Transfer recorded that the parties agreed that additional sums “may be payable” by Diageo to Nio, “to be paid as a supplement to the purchase price of Share A …depending on what is separately agreed between the parties” (emphasis added).[30]The claims advanced by Nio before the Court of Milan fall into three categories: i) Allegations of breach by Diageo of the terms of the SPA, albeit characterised in the prayer for relief in the Writ as an alleged breach of Article 2 of the Deed of Transfer for having failed to pay Nio €780,008; ii) Contraventions of various provisions of the Italian Civil Code by e.g. Diageo applying an exchange rate to the amount of the Estimated Liability which was unfavourable to Nio and Diageo breaching its obligation to act fairly and in good faith (including by allegedly(i) failing to consult with Nio before entering into the Settlement Agreement,(ii) failing to do everything in its power (although this misstates the ‘reasonable endeavours’ obligation imposed on Diageo by clause 5.4 of the SPA) to ensure that Niococktails purchased products from the Proximo/McGregor Entities to reduce the amount of any cash payment, and(iii) failing to trigger the Counsel Determination Mechanism before withholding an amount from the Deferred Consideration); and iii) A claim for tortious liability under Article 2043 of the Italian Civil Code for damage said to have been caused to it (including by way of loss of profit) by alleged negligent or intentional conduct on the part of Diageo. It was alleged that Diago acted in conflict of interest by causing Niococktails to terminate the Proximo/McGregor agreements, the conflict arising from the fact that Diageo produced alcoholic beverages and had no interest in Niocockails purchasing the same from the Proximo/McGregor Entities, while the termination of the agreements with those Entities would cause harm to Nio because Nio would become obliged to compensate Diageo (and I note that obligation to compensate arises under the terms of the SPA and not the Deed of Transfer).[31]While dressed up as claims for breach of the Deed of Transfer or breaches of various provisions of Italian law, properly characterised the claims are for alleged breach by Diageo of the SPA for failing to pay the full amount of the Deferred Payment and using an unjustified exchange rate when calculating the amount of the Estimated Liability. The non-contractual claim advanced by Nio was based upon conduct on the part of Diageo and Niococktails which was specifically envisaged by the SPA, being termination of the agreements between Niococktails and the Proximo/McGregor Entities, the estimated amount of any liability for which termination fell to be withheld by Diageo from the Deferred Payment subject to the terms of the SPA.[32]In the Writ, Nio sought to justify commencing proceedings in Italy on the basis of the exclusive jurisdiction clause in favour of the Italian courts contained in Article 8 of the Deed of Transfer, which Deed it termed the “Definitive Agreement”, with the SPA being referred to by Nio as the “Preliminary Agreement”. Those descriptors do not accurately reflect the nature of the SPA and the Deed of Transfer. Rather, the SPA contained the bulk of the material rights and obligations of the parties, with the Deed of Transfer being confined in its scope to the formalities required under Italian law to effect transfer of a share in a company incorporated in Italy, which would naturally fall within the jurisdiction of the Italian courts.[33]After issuing the proceedings before the Court of Milan, Nio filed an application to the Italian Supreme Court seeking a declaration that the Milan court had jurisdiction in relation to the claims brought by Nio (the Milan Court and Italian Supreme Court proceedings, together the ‘Italian Proceedings’). As a result of that application, the proceedings before the Court of Milan were and remain stayed.

Procedural background

[34]Diageo obtained an urgent interim anti-suit injunction from David Bailey KC sitting as a Deputy Judge of the High Court on 18 July 2005, restraining Nio from taking further steps in the Italian proceedings until further order (the ‘Interim Anti-Suit Injunction’). The Interim Anti-Suit Injunction was made on an ex parte short notice basis as, shortly prior to the hearing, Diageo’s solicitors had received an email from Nio’s Italian lawyers claiming that Nio had not been validly served with the application. While no reason was provided on behalf of Nio as to why the application had not been validly served, the position could not be resolved before the hearing which was due to take place that day. The Judgment of David Bailey KC dated 6 August 2025 can be found at [2025] EWHC 2109 (Comm). An objection to service of the application before me has also been made by Nio.[35]The Interim Anti-Suit Injunction was continued until further order by HHJ Pelling KC by Order dated 8 September 2025 (the ‘8 September Order’). By that Order, HHJ Pelling KC also granted permission to Diageo to serve the Claim Form and all other documents in these proceedings on Nio out of the jurisdiction in Italy by sending such documents to Nio’s certified email address (stated to constitute alternative service if such service was not otherwise valid), and confirmed that the steps already taken by Diageo to draw the Claim Form and other documents in the proceedings (including the Interim Anti-Suit Injunction) to the attention of Nio, by sending those documents to its certified email address, constituted good service.[36]By the 8 September Order, the Claim Form was deemed served on 9 July 2025, when it was sent from the certified email account of Diageo’s Italian lawyers to Nio’s registered certified email address, and the Interim Anti-Suit Injunction was deemed served on 5 August 2025. The 8 September Order also stipulated dates by which Nio was to file an acknowledgement of service, admission or defence and to respond to any application notice.[37]As at the date of hearing before me (17 April 2026), Nio had not served any acknowledgement of service or defence.[38]The application by Diageo for summary judgment and a final anti-suit injunction was issued on 6 January 2026 and was served on Nio, in accordance with the 8 September Order, by certified email on 23 January 2026 (and Diageo’s position is that this also constituted good service under Italian law and the Hague Service Convention). An email dated 3 February 2026 was sent from Nio’s certified email address to Diageo’s Italian lawyers which confirmed receipt of the email from Diageo attaching the application, but stating that Diageo’s Italian lawyers had not been authorised to act as legal representative (of Diageo) and asking them to clarify whether they had entered an appearance in these English proceedings or to confirm that their sending of the application could not be characterised as service. Diageo’s Italian lawyers responded on 6 February 2026 disputing Nio’s position regarding service and told Nio to raise any complaint about service with the English court. No response to that email or to the application has been received, and Nio has not sought to challenge service of the application (or indeed the Claim Form) before this Court.

Application before the Court

[39]By its application, Diageo seeks the following relief:(i) permission to apply for summary judgment under CPR 24.4(1) (Nio not having filed an acknowledgement of service or defence),(ii) summary judgment on Diageo’s claims(iii) a final anti-suit injunction,(iv) declaratory relief, and(v) damages to be assessed together with an interim payment, with all further proceedings in relation to assessment of damages being stayed until the conclusion of the Italian Proceedings.[40]While Nio has not responded to the application (or these proceedings) other than to dispute service, I am satisfied that Nio has been properly served with and is aware of the application. I am therefore satisfied that it is appropriate to determine the application in the absence of Nio. The relief sought by Diageo – applicable principles Permission to apply for summary judgment

The relief sought by Diageo – applicable principles

[41]Pursuant to CPR 24.4(1), a claimant may not apply for summary judgment until the defendant against whom the application is made has filed an acknowledgement of service or a defence, unless the Court gives permission. Nio has not filed an acknowledgement of service or defence in these proceedings and therefore Diageo has sought permission to apply for summary judgment.[42]Where a party would be entitled to seek default (as distinct from summary) judgment on certain aspects of its claims, the Court must consider that there is a good and proper reason for granting permission for a summary judgment application, see Duferco SA v. CVG Ferrominera Orinoco SA [2021] EWHC 824 (Comm) at [15]. Seeking judicial determination of claims for enforcement purposes can amount to a good and proper reason, per Duferco at [15].

Summary Judgment

[43]Under CPR 24.3 the Court may give summary judgment against a defendant on the whole of a claim or on a particular issue if it considers that the defendant “has no real prospect of successfully defending the claim or issue” and “there is no other compelling reason why the case or issue should be disposed of at a trial”. The applicable principles have been set out in numerous cases, but in particular AC Ward & Sons v. Catlin (Five) Ltd & Ors[2009] EWCA Civ 1098 at [24] approving Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15].[44]In terms of the burden of proof, this rests on the applicant, but once an applicant adduces credible evidence in support of the application, the respondent comes under an evidential burden to prove some real prospect of success or other reason for having a trial, see Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd (formerly Condek Ltd) [2014] 2016 (TCC) at [13].[45]Where declaratory relief is sought, the Court is able to grant such relief on an application for summary judgment where it concludes the defendant has no real prospect of success on the underlying facts or matters which are the subject of the declaration: Abaidildinov v. Amin [2020] 1 W.L.R. 5120 at [47]. Once it has been determined that a defendant has no real prospect of success in disputing the underlying facts, the Court has a discretion whether to grant a declaration: Abaidildinov at [49].[46]The Court’s jurisdiction to grant a declaration is found in s.19 of the Senior Courts Act 1981. The factors relevant to the appropriateness of the Court granting declaratory relief include: “justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any other special reasons why or why not the court should grant the declaration”: FSA v. Rourke [2002] CP Rep 14.[47]Where the declaratory relief sought is a declaration of non-liability, the key question is whether the declaration would serve a useful purpose. Where a negative declaration “would help to ensure that the aims of justice are achieved” then the Court should not be reluctant to grant such a declaration: Messier-Dowty Ltd v. Sabena SA [2000] 1 W.L.R. 2040 (CA) at [41]. A declaration can be granted in relation to an exclusive jurisdiction clause to confirm that proceedings have been brought in breach of that provision in an appropriate case: Airbus SAS v. Generali Italia SpA [2019] 1 CLC 903 (CA) at [95-97].

Final anti-suit injunction

[48]An exclusive English jurisdiction clause includes not only a positive obligation to bring any proceedings within its scope in England but also a negative obligation not to commence proceedings in any other forum: AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) at [21].[49]The Court has the power to grant an anti-suit injunction under s.37(1) of the Senior Courts Act 1981. The Court will ordinarily exercise its discretion to restrain foreign proceedings brought in breach of an exclusive English jurisdiction clause unless the defendant can show strong reasons to refuse the relief: see e.g. QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] 2 CLC 389 at [10].[50]Although the burden on the claimant at the interlocutory stage is to establish to “a high degree of probability” that there is a binding and applicable exclusive jurisdiction agreement, the burden on the claimant at a hearing for a final anti-suit injunction is the usual the balance of probabilities standard: Louis Dreyfuss Company Suisse SA v. International Bank of Saint Petersburg [2021] EWHC 1039 at [20]. Once that burden is satisfied, the burden of showing a good reason not to grant the injunction rests on the defendant: QBE Europe (above) at [10].[51]Diageo has, in the alternative to seeking a final anti-suit injunction on the basis of an exclusive jurisdiction clause, applied on the ‘vexatious and oppressive’ ground i.e. where(i) England is the natural forum; and(ii) justice requires that the claimant in the foreign action be restrained from proceeding there. As I explain below, I consider that I should grant a final anti-suit injunction on the basis that the Italian Proceedings have been brought in breach of the exclusive jurisdiction clause in favour of the English Court contained at clause 24.2 of the SPA. I therefore need say nothing more about the alternative ground of the application.

Damages for breach of an exclusive jurisdiction clause

[52]Before the Supreme Court in both Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2013] UKSC 70, [2014] Bus. LR 873 and AMT Futures Ltd v Marzillier [2018] A.C. 439, the proposition that damages can be obtained for breach of an exclusive jurisdiction agreement has gone unchallenged (see the observation in Dicey [12-117]). Where proceedings are brought in breach of an exclusive jurisdiction clause, the non-defaulting party is entitled to damages to put it in the position as if the foreign proceedings had not been brought at all. Such damages can include costs incurred in those foreign proceedings, see Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd[2015] 1 Lloyd’s Rep. 301 at [37]-[38].[53]A party forced to defend proceedings brought in breach of an exclusive jurisdiction clause can recover reasonable costs incurred as a result of the foreign proceedings even if the foreign court lacks the power to award costs, see Union Discount Co Ltd v Zoller[2002] 1 W.L.R. 1517 at [31], a case concerned with proceedings brought in the United States. In National Westminster Bank plc v Rabobank Nederland (No. 3)[2008] 6 Costs L.R. 839 at [25], it was held that the assessment of legal costs would be performed on the indemnity basis such that the non-defaulting party could recover all costs reasonably incurred and reasonable in amount, with the burden of proof of any failure to mitigate on the party in breach (akin to the burden of proof of unreasonableness resting on the paying party under the indemnity basis of costs assessment in English civil proceedings).[54]A successful claimant for an anti-suit injunction in England is also ordinarily entitled to its costs of obtaining an anti-suit injunction on an indemnity basis if the claimant can establish that the breach of the exclusive jurisdiction clause has caused the claimant reasonably to incur legal costs, see A v B [2007] 2 CLC 203 at [9]-[15]. This should in practice achieve the same result as awarding damages in respect of the breach. Decision Permission to apply for summary judgment

Decision

[55]I will grant the permission sought.[56]Nio has been validly served with the Claim Form and this application and has not defended either. It has not provided any reason for its failure to defend the action or the application other than to assert in correspondence a lack of proper service (although not notice). However, HHJ Pelling KC has already decided that the Claim Form has been validly served on Nio, Diageo followed the steps required to validly serve Nio in accordance with the 8 September Order, and Nio has clearly had notice of the proceedings by reason of the fact that it responded to the email serving the application materials.[57]There are also good and proper reasons to allow Diageo to seek summary rather than default judgment. i) Article 8 of the Hague Service Convention provides that a judgment given by a court of a contracting state designated in an exclusive choice of court agreement shall be recognised and enforced in other contracting states (Italy being such a state) in accordance with Chapter III of the Convention (which precludes any review of the merits of such a judgment). A “judgment” for these purposes is defined as “any decision on the merits given by a court.” Although not a decision made in the context of the Hague Service Convention, it was held by Mr Justice Briggs (as he then was) in Football Dataco Ltd v Smoot Enterprises Ltd [2011] 1 WLR 1978 at [16] that a default judgment, unlike a summary judgment or judgment after trial, was not a decision on the merits. ii) Further and in any event, certain heads of the relief sought by Diageo, namely declaratory relief and final anti-suit injunction, cannot be granted without an application and the Court considering the appropriateness of the relief sought. It is therefore appropriate for the Court to address these heads of relief by way of summary, rather than default judgment.

A final anti-suit injunction

[58]I consider it appropriate to grant Diageo a final anti-suit injunction to restrain Nio from continuing with the Italian Proceedings.[59]Where there are multiple contracts and concurrent jurisdiction clauses, the Court should adopt a broad, purposive and commercially-minded construction, in the light of the transaction as a whole, taking into account the overall scheme of the agreements. This may include enquiring under which of the agreements the dispute actually arises, and seeking to do so by locating its centre of gravity and thus which jurisdiction clause is closer to the claim, see Dicey at para 12-082.[60]There are two exclusive jurisdiction clauses in the relevant transaction documents: clause 24.2 of the SPA and Article 8 of the Deed of Transfer. The Deed of Transfer is narrow in scope in that it was concerned with arrangements for effecting the transfer of the A Share in Niococktails from Nio to Diageo upon payment of the completion payment of €2.75m. The express purpose of the Deed of Transfer was compliance with the requirements of section 2470 of the Italian Civil Code. Article 2470 provides, in relevant part, that:
“A transfer of shares becomes effective with respect to the company from the moment the deed of transfer is deposited, as specified below. The deed of transfer, duly certified by the authenticating notary, must be deposited by the authenticating notary within thirty days at the office of the Register of Companies for the district where the company’s registered office is located. …”
[61]The principal purpose of the Deed of Transfer was therefore to comply with the formalities for the transfer of shares in an Italian company. It was not concerned with the wider rights and obligations of the parties related to the sale and purchase of the A Share, including the terms upon which any part of the Deferred Payment could be withheld. By its express terms, the Deed of Transfer was not concerned with the Deferred Payment or the Exit Payment, which payments were governed by the SPA, with the Deferred Payment being the payment at issue in these proceedings.[62]The limited purpose of the Deed of Transfer is reflected in the exclusive jurisdiction clause at Article 8 of the Deed, which by its terms is clear that it applies only to disputes concerning the Deed of Transfer itself. By contrast, clause 24.2 of the SPA is drafted in wide terms and confers exclusive jurisdiction on the English Court to determine any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the SPA or its subject matter. The construction of the exclusive jurisdiction clause starts from the assumption that the parties, as rational business people, are likely to have intended any dispute arising out of the relationship into which they have entered to be decided by the same tribunal unless the language of the clause makes it clear that certain questions are to be excluded from that tribunal’s jurisdiction, see Fiona Trust & Holding Corp v Privalov [2007] UKHL 40, [2007] Bus. L.R. 1719 at [13].[63]In my judgement, all of the claims brought by Nio before the Court of Milan are disputes or claims which fall within the material scope of clause 24.2 of the SPA, which is a binding exclusive jurisdiction agreement (and I so find on the balance of probabilities). While its claims before the Milan court are labelled by Nio as claims for breaches of the Deed of Transfer, or of provisions of Italian law, or as a claim for non-contractual liability based upon the settlement between Niococktails and the Proximo/McGregor Entities which could entitle Diageo, under the terms of the SPA to withhold part of the Deferred Payment, they are in substance claims for breaches by Diageo of the terms of the SPA (in particular clauses 5.4 and 6.2) or the non-fulfilment of the conditions required to be fulfilled before Diageo was entitled to withhold any part of the Deferred Payment. In particular, they constitute a complaint that Diageo had no right to withhold the sum of €780,008 from the Deferred Payment otherwise payable as an Estimated Liability. The obligation on Diageo to pay the Deferred Payment arises exclusively under the SPA and not the Deed of Transfer, which expressly excludes consideration other than the €2.75m from its scope.[64]Nio’s claims brought before the Court of Milan therefore fall squarely within the scope of clause 24.2 and should only have been brought by Nio in England. Nio’s claims before the Court of Milan are therefore a breach of the exclusive jurisdiction clause.[65]Similarly, Nio’s claim before the Italian Supreme Court for a declaration that the Court of Milan has jurisdiction to hear its claims constitutes a breach of the exclusive jurisdiction clause, such dispute as to jurisdiction arising out of or being connected with the SPA (including the exclusive jurisdiction clause) or its subject matter.[66]Breach of the exclusive jurisdiction clause having been established by Diageo, there are in my judgment no strong reasons not to make the Interim Anti-Suit Injunction final, which Injunction should also make clear that Nio is restrained from pursuing the proceedings before the Italian Supreme Court.

Declaratory relief

[67]By its Claim Form and application, Diageo sought the following declarations: i) The claims brought by Nio against Diageo in the Italian Summons are within the scope of the exclusive English jurisdiction agreement contained in clause 24.2 of the SPA. ii) Accordingly, the claims brought by Nio against the Claimant before the Civil Court of Milan in the Italian Summons are in breach of the exclusive jurisdiction agreement in clause 24.2 of the SPA. iii) Diageo has no liability to the Defendant in respect of the claims made in the Italian summons.[68]At the hearing of the application and following a submission made by Diageo (reflected in my finding at paragraph 65 above) that the proceedings brought by Nio before the Italian Supreme Court as well as those before the Court of Milan were brought in breach of the exclusive jurisdiction clause in favour of the English court (a submission with which I agree), I said that declarations (i) and (ii) ought to encompass the Supreme Court proceedings. Diageo subsequently submitted a revised declaration for the Court’s consideration (along with other revisions to declaration (iii), addressed below).[69]I consider it is appropriate to grant the declarations at (i) and (ii), adjusted to encompass Nio’s claims before the Italian Supreme Court as well as before the Court of Milan. I find that Nio does not have a real prospect of showing that its claims in the Italian Proceedings fall outside of the scope of the English exclusive jurisdiction clause, or that it has not in bringing and continuing those Proceedings breached that clause. While discretionary, declarations in the form sought will have utility in that they crystallise the rights and obligations of the parties under clause 24.2 of the SPA, which rights and obligations underpin the grant of the Final Anti-Suit Injunction as well as Nio’s obligation to pay damages to Diageo (which I address below). They will also make clear the position on jurisdiction from the perspective of English law.[70]In relation to the declaration of non-liability sought at (iii), I expressed concern at the hearing that it was not appropriate for the Court to make declarations, at any event on the material before the Court on this application, as to the liability or otherwise of Diageo under Italian law. I requested that the declaration be reformulated so as to extract the relevant material allegations made in the Italian proceedings, and declare what the correct position was under the SPA as a matter of English law.[71]Following the hearing, Diago reformulated declaration (iii) as follows: i) The claims intimated against the Company in or around December 2023 by Proximo Spirits Inc (“Proximo”) and Eire Born Ventures LLC, McGregor Sports and Entertainment LLC and McGregor Sports Entertainment Limited (together the “McGregor Entities”) in relation to the termination of:(i) the Letter of Intent dated 23 August 2023 between the Company and Proximo; and(ii) the Promotional Services Agreement dated 29 August 2023 between the Company and the McGregor Entities (the “Proximo/McGregor Claims”), which resulted in the Settlement and Release Agreement dated 2 August 2024 agreed between the Company, Proximo and the McGregor Entities pursuant to which the Company paid the sum of USD 1m (the “Settlement Sum”) in full and final settlement of the Proximo/McGregor Claims (the “Settlement Agreement”), were Relevant Claims within the meaning of clause 5.1 of the SPA. ii) The Claimant is entitled to an indemnity from the Defendant pursuant to clause 5.2(b) of the SPA in respect of the Settlement Sum less the sum of EUR 200,000 pursuant to clause 7.5 of the SPA. iii) The Claimant complied with its obligations under clause 5.4 of the SPA in relation to the negotiation and execution of the Settlement Agreement by, in so far as it was able by the exercise of its rights in relation to the Company, using reasonable endeavours to ensure that the Company: (a) gave due regard to any option to settle or compromise the Proximo/McGregor Claims by making a limited purchase of products from Proximo; and (b) consulted with the Defendant prior to entering into the Settlement Agreement. iv) The Claimant complied with its obligations under clause 6.2 of the SPA and was entitled to withhold the sum of EUR 780,008, being a genuine and bona fide estimate of the Defendant’s liability under clause 5.2(b) of the SPA, from the amount paid to the Defendant on 14 January 2025 in respect of the Deferred Payment due under the SPA. v) The claims made by the Defendant in the Italian Summons are governed exclusively by English law pursuant to the English choice of law agreement at clause 24.1 of the SPA and the provisions of Italian law and/or the Italian Civil Code relied on by the Defendant in the Italian Summons therefore have no application. vi) Article 2 of the Deed of Transfer of Shares in a Limited Liability Company dated 1 December 2023 agreed between the Claimant and the Defendant does not govern and has no application to the Defendant’s claims in the Italian Summons.[72]However, before addressing the wording and scope of these proposed declarations, I will consider the key question (in the context of the first four proposed declarations) as to whether Diageo complied with the requirements in the SPA which conditioned its ability to withhold part of the Deferred Payment.[73]In this regard, I am satisfied that (and Nio has no real prospect of showing otherwise): i) The dispute or claim between Niococktails and the Proximo/McGregor Entities which resulted in the Settlement Agreement constituted a ‘Relevant Claim’ for the purposes of Clause 5.1 of the SPA, and that Nio was (potentially) obliged, under clauses 5.2(b) and 7.5(a) of the SPA, to indemnify Diageo in respect of any amount paid by Niococktails over and above €200,000 by way of settlement or compromise of that Relevant Claim. ii) Diageo used reasonable endeavours to ensure Niococktails: a) Gave due regard to settling the dispute/claim made by the Proximo/McGregor Entities by way of Niococktails making a limited purchase of products from Proximo. There is credible (indeed undisputed) evidence both that Niococktails made offers to settle on the basis of a purchase of alcohol from Proximo, and that these offers were rejected by the Proximo/McGregor Entities. What constitutes ‘reasonable endeavours’ in a particular case is a question of the interpretation of the contract in issue. In this case, the ‘reasonable endeavours’ obligation related to giving due regard to settling a dispute on particular terms. In this context, it is difficult to see what else the party obliged to use reasonable endeavours can do other than to seek to agree such a term with the other parties to the dispute. Niococktails did attempt to obtain the Proximo/McGregor Entities’ agreement to the term identified in clause 5.4(a) of the SPA. b) Consulted with Nio prior to entering into the Settlement Agreement. There is credible (undisputed) evidence that Niococktails (and Diageo) did consult with Nio about the dispute, and the proposed terms of settlement. Indeed, there is evidence that Niococktails asked Nio for comments on the proposed settlement terms. iii) Diageo therefore complied with clause 5.4 of the SPA. iv) Diageo notified Nio in writing of the Relevant Claim and Estimated Liability (the Claim being an Unsubstantiated Claim) before the Deferred Payment became due. Given that the Estimated Liability so notified was calculated by reference to the sum that Niococktails was obliged to pay the Proximo/McGregor Entities under the Settlement Agreement, I am satisfied that the Estimated Liability was a genuine and bona fide estimate of Nio’s liability to Diageo under clause 5 of the SPA. That being the case, Diageo became entitled to withhold from the Deferred Payment the amount of the Estimated Liability (less the excess of €200,000).[74]Nio has argued in correspondence with Diageo that Diageo was not entitled unilaterally to withhold any amount from the Deferred Payment, and that Diageo was obliged to obtain a determination pursuant to the Counsel Determination Mechanism before it was entitled to withhold any sum. In my view that is not the correct interpretation of clause 6.2 of the SPA. Clause 6.2 provides that “If [Diageo] has notified [Nio] in writing of any Claim [which includes a claim to indemnify under clause 5 of the SPA] which is not a Substantiated Claim (an “Unsubstantiated Claim”) before any Future Payment becomes due …, [Diageo] shall be entitled to withhold from any Future Payment a sum equal to the Estimated Liability until and to the extent the Unsubstantiated Claim becomes a Substantiated Claim (“Withheld Amount”).” Accordingly, Diageo is entitled to withhold the amount of the Estimated Liability as long as it has notified Nio of the same in writing before any Future Payment becomes due. It did that. While clause 6.2 provided that “[Diageo] and [Nio] shall use all reasonable endeavours to agree the Estimated Liability … as soon as practicable and, in any event, no later than the date the relevant Future Payment becomes due for payment”, Diageo’s entitlement to withhold an amount in respect of an Estimated Liability was not predicated on agreement being reached (or even it using all reasonable endeavours to reach an agreement).[75]Ultimately, the entitlement of Diageo to withhold any amount in respect of a liability for which Nio is obliged to indemnify Diageo under clause 5 (such that it operates to reduce the amount of the Purchase Price) only becomes final if both parties agree liability and quantum, or the matter is determined by the English Court i.e. the Unsubstantiated Claim becomes a Substantiated Claim. The purpose of the Counsel Determination Mechanism in clause 6.2 was to afford either party an opportunity to determine the amount Diageo was entitled to withhold (if anything) prior to the Unsubstantiated Claim becoming a Substantiated Claim and, in particular, it allowed Nio to challenge the Withheld Amount.[76]The evidence shows that Diageo did seek to agree the amount of the Estimated Liability with Nio before the deadline for payment of the Deferred Consideration; indeed, Diageo made several attempts to do so. However, no agreement was reached, and neither party invoked the Counsel Determination Mechanism at clause 6.2 of the SPA, which would have involved an independent barrister giving an opinion on whether the Unsubstantiated Claim was more likely than not to succeed, as well as a determination of the amount of the Estimated Liability. Nio could have taken that opportunity, to challenge Diageo’s ability to withhold any amount from the Deferred Payment, but it did not do so. However, the fact it did not do so does not preclude Diageo from withholding an amount in respect of an Estimated Liability of which it had given Nio written notice at the contractually appointed time.[77]As I have sought to explain above, in my view the SPA is structured in such a way that before Diageo becomes finally entitled to an indemnity from Nio and in a particular amount, any Unsubstantiated Claim has to be converted into a Substantiated Claim either by way of the parties agreeing it in writing as to both liability and quantum, or it being finally adjudicated by a court of competent jurisdiction. I am not in a position on this application to determine whether Nio is in fact liable to indemnify Diageo and in what amount. Absent agreement between the parties, that will have to be determined at a later date by the English Court.[78]That being the case, while I am prepared to grant the declarations set out at paragraph 71(i), (iii) and (iv) above, I am not prepared to declare at this stage that Diageo is entitled to an indemnity from Nio in respect of the Settlement Sum less the €200,000 excess. It may be so entitled, but that is a matter for another day.[79]As to the declaration sought by Diageo set out at paragraph 71(v) above, which relates to the application of English law as the law governing the SPA, while I have found that the claims made by Nio in the Italian Proceedings fall within the scope of the exclusive jurisdiction clause, which is governed by English law along with the rest of the SPA, I am not prepared to declare that all the claims made by Nio in Italy are governed by English law, which question will be determined by the application of the Rome I and/or 2 Regulations, on which I have not heard argument. It was partly for this reason that I required Diageo to reformulate the declarations sought such that they addressed matters which plainly were governed by English law, relating as they did to the proper interpretation of the SPA and Diageo’s compliance with its terms.[80]As to the final declaration sought by Diageo recorded at paragraph 71(vi) above, I will grant it in the following amended terms:
“Article 2 of the Deed of Transfer of Shares in a Limited Liability Company dated 1 December 2023 agreed between the Claimant and the Defendant does not govern the questions of (i) the amount payable by the Claimant to the Defendant in respect of the Deferred Payment, or (ii) the question of whether Nio is obliged to indemnify Diageo in respect of the Settlement Sum and in what amount, or (iii) whether Diageo was entitled to withhold the sum of €780,008 or any sumfrom the Deferred Payment, which questions are governed by the terms of the SPA.”

Damages

[81]I agree with Diageo that by commencing and pursuing the Italian Proceedings, Nio has breached the exclusive jurisdiction clause in the SPA. As a result of that breach, Diageo has taken steps in Italy to challenge the jurisdiction of the Italian courts. In so doing, Diageo has incurred costs, principally legal costs. I consider that Diageo is entitled to recover such expenditure which is reasonably incurred as damages in these proceedings.[82]Diageo is not in a position finally to determine the amount of its loss because the Italian Proceedings are ongoing, with the proceedings before the Milan court stayed pending a decision on jurisdiction from the Italian Supreme Court. That being the case, Diageo seeks pursuant to CPR 25.20 and CPR 25.23(b) an interim payment of damages in respect of the costs it has incurred in the Italian proceedings to date in the amount of £44,045, together with an order that damages be assessed following the conclusion of the Italian Proceedings.[83]The sum of £44,045 represents approximately 90% of the costs (which total €52,238.29) that Diageo has incurred to date in respect of the Italian Proceedings. Those costs have been established before me by way of the invoices submitted by Diageo’s Italian lawyers, PedersoliGattai.[84]Even assessing the costs on the indemnity basis, 90% would be a high proportion of costs to recover (and I use indemnity costs as a useful proxy for an exercise in assessing reasonable costs where the burden is on Nio to establish a lack of reasonableness or failure to mitigate). That said, the amount of £44,045 (or indeed the total costs of €52,238.29) is reasonably modest and I have no specific reason to reduce the amount of the interim payment sought. Further, it is likely that Diageo will continue to incur legal costs in Italy and it follows that its final costs burden for which it will be entitled to be compensated will likely exceed £44,045.[85]I therefore consider it appropriate to grant Diageo an interim payment in the amount of £44,045, with the remainder of its loss to be assessed in due course following the conclusion of the Italian Proceedings. It is appropriate for Diageo to receive some contribution from Nio towards its costs at this point rather than awaiting the conclusion of the Italian Proceedings.[86]As for the costs of these proceedings and the application, I have been provided with a costs schedule by Diageo in respect of the application (but not the proceedings), with a request that costs be assessed summarily and on the indemnity basis. The total amount claimed as the costs of the application is £42,056.90. I note that HHJ Pelling KC has already made a costs award in Diageo’s favour in the amount of £85,159 (out of the £95,411 claimed) which sum covers Diageo’s costs of the hearing before David Bailey KC on 18 July 2025 and the costs of the application to continue the Interim Anti-Suit Injunction, assessed on the indemnity basis. It is unclear to me whether there exist costs of these proceedings (other than the £10,000 court fee for issuing the proceedings) which fall outside of the scope of those two applications, this application and the Italian Proceedings.[87]I therefore limit my summary assessment to the costs of this application (plus the £10,000 court issue fee), with any other amounts incurred by Diageo in these proceedings not already subject to costs orders to be assessed at the same time as damages are finally to be assessed. I assess the costs of this application on the indemnity basis in the amount of £33,645, being 80% of £42,056.

Cited in 1 later judgment