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5 Judicial Assistance and Judicial Intervention

From: Private International Law in English Courts

Adrian Briggs

Content type:
Book content
Product:
Private International Law [PRIL]
Published in print:
06 November 2014
ISBN:
9780198713739

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 06 June 2023

Subject(s):
Parties to litigation — Hague Evidence Convention — Insolvency — Preserving assets — Anti-suit injunctions and jurisdiction — Jurisdiction under the Lugano Convention — Jurisdiction under the Brussels I Regulation — Applicable law — Non-contractual obligations — Jurisdiction clauses

(p. 361) 5  Judicial Assistance and Judicial Intervention

A.  Introduction

5.01  The forms of assistance which an English court can make available directly or indirectly to a foreign court, or to a party to litigation before that court, are a mixture of common law powers, statutory powers created by Parliamentary legislation (including legislation to give effect in English law to the provisions of an international treaty), and measures provided for by European legislation.1 The result is something of a patchwork, but where the assistance is given it proceeds from a basic belief that a properly regulated degree of cross-border co-operation and co-ordination will make a positive contribution to the resolution of disputes and the effectiveness of judgments. This area of private international law has undergone considerable recent development; there is reason to expect more. To take one example, there are indications that a more formal process to allow a court in one state to obtain advice, or a ruling, on a question of foreign law from a court in another state, may soon be proposed, or even created. At present the position appears to be that an English court has a general, if not well-advertised, discretion to entertain proceedings which are brought for the purpose of providing a court in a non-Member State with a ruling on a point of English law.2 But within the European Union, at least, it has been suggested, and may soon be proposed, that a more formal mechanism be put in place, the better to ensure that a court which considers that it should apply the law of another Member State, in particular, do so with accurate data.3(p. 362)

5.02  One may see the common law power to stay proceedings on the ground of forum non conveniens in this same light, especially where there is a lis alibi pendens before the courts of another country. A very effective way to assist the judicial process in another state is to refrain from competitive or potentially contradictory adjudication. One may also see the law on the recognition and enforcement of judgments in this light: the willingness to recognize and to enforce a foreign judgment, even while harbouring reservations about the verdict of the foreign court, makes a very substantial contribution to cross-border judicial assistance. But these aspects of the subject are examined elsewhere.

5.03  Statutory forms of assistance are found in a variety of places. In the law of cross-border insolvency, a statutory power to assist a foreign court which has a better or prior claim to control the insolvency is pervasive. But it does not cover every situation in which an English court may be asked to give its assistance, or allow for a compliant response when a foreign court requests assistance. From time to time a court discovers that it has, or believes it has, discovered a power at common law or in equity to assist a foreign court in ways which were rather unexpected and where it is perceived that the legislator has not kept up with the needs of cross-border co-operation; but on other occasions a court may simply deduce that it does not have the power to grant a particular measure which a foreign court has asked for. As the nature and extent of the power to assist is so bound up with the substantive private international law of insolvency, it is better seen as a part of the private international law of insolvency and is dealt with in Chapter 11.

5.04  But these are examples of general assistance during and after trial. The law on cross-border judicial assistance is perhaps of greater significance during the stage of preparation for trial, and it is this which is the focus of this chapter. The first and second measures considered in this chapter—the service of process and the obtaining of evidence—were the subject of conventions made under the auspices of the Hague Conference on International Law and adopted into the laws of many states in the second half of the twentieth century. Even before that, bilateral conventions were made, and occasional traces of these may still be found. But more significantly, the legislative organs of the European Union took the two of the Hague Conventions and used them as the basis to fashion only slightly modified schemes for judicial assistance within the European Union. The result is that for the two principal forms of assistance examined here, the starting point is to ask whether the assistance is sought or to be given within or beyond the European Union. Insofar as the law made in European Regulations and in the implementation of international conventions explains when an English court will lend assistance to a proceeding in a foreign court, it also largely explains how a foreign court may lend its assistance to proceedings in England. For completeness, it is convenient to mention the law on service of process in cases to which no treaty governing service extends.

5.05  As a third measure, it is convenient to examine orders for the preservation of assets which are either the subject of litigation or are liable to be targeted when a judgment creditor seeks to enforce his judgment. Our concerns will not be with the (p. 363) details of English domestic law on freezing injunctions, but with its cross-border aspects: orders made in relation to assets which are not in England; orders made against persons who are not domiciled or present in England; and orders made in anticipation of the enforcement of a foreign judgment. What distinguishes this form of assistance from the two preceding ones is that it is almost always unlooked for by the foreign court: cases in which a foreign court has actually asked for the freezing of assets are very hard to find. Instead, the relief is applied for by a claimant, and the foreign court is said by some to be ‘assisted’ by the grant of it. It will be obvious that the sense in which this is to be seen as a form of judicial assistance is very different from the assistance given in respect of service of documents or the gathering of evidence. An unkind observer may consider it rather more accurately described as a very considerable act of assistance to one of the parties, who manages thereby to paralyze or otherwise hamper and restrict his opponent at a critical juncture, but which has been represented, in a brilliant piece of public relations, as giving assistance to the foreign court. In the end this may not matter, for the court has a discretion, which allows for the proper interests of the foreign court to be accounted for. But in law, as in life, it rarely does harm to ensure that the label describes the contents of the bottle.

5.06  The fourth measure is, if not the mirror image, a measure which may redress the balance, and which makes no pretence of assisting a foreign court. For if the order for the preservation of assets assists the claimant, in the particular sense that it seeks to ensure that there will be assets against which it will be possible for him to enforce a successful judgment, an order for security for costs is the equivalent for a defendant: an order made to offer the defendant some kind of reassurance that if he succeeds in his defence, and obtains an order for costs against the claimant, there will be a fund against which this can be enforced. The relief is applied for by a defendant. There is no sense in which this is assistance to anyone other than a defendant; it may have a devastating impact on the claimant against whom it is made and whose resources may be under some strain.

5.07  Fifth and finally, we examine an order which is liable to be seen as the very antithesis of judicial assistance: the order which has the effect, or at least strives to have the effect, of intervening to prevent proceedings taking place or proceeding in a foreign court. Even though the order is made by an English court which will say that it is not aimed at the foreign judge or court, candour really requires one to accept that it is an act of judicial interference with proceedings before or liable to come before a foreign court, and to address the law in the light of that perception.

B.  The Law

5.08  The topics examined in this chapter are therefore as follows:

  1. (1)  Judicial assistance in relation to the service of process outside the jurisdiction of the issuing court.(p. 364)

  2. (2)  Judicial assistance in relation to the obtaining of evidence for use in a foreign proceeding.

  3. (3)  Judicial assistance to the claimant, by ordering the preservation of assets.

  4. (4)  Judicial assistance to the defendant, by ordering security for costs.

  5. (5)  Judicial intervention: the anti-suit injunction.

5.09  With that introduction, we proceed to examine the law by reference to these five points.

(1)  Assistance in the service of process

5.10  Judicial proceedings usually start with service of process, and the law on whether and how, and how punctiliously, process needs to be served is a matter for the law of the court whose process it is that needs to be served. English law, therefore, specifies how an English claim form, and how any other document which requires service, is to be served.4 English law also determines whether or in what circumstances a failure to serve in accordance with the requirements of English law may be condoned or overlooked.5 But the question of how service may be made is also a matter which pays attention to the law of the country in which the act of service is to take place. English law may require service to be made on a person who is in a foreign country; it may authorize service to be made in a foreign country; but it cannot authorize or require acts to be done in a foreign country which would breach the law of that foreign country.6 And what is true for English process to be served overseas is also true for foreign process which is to be served in England.

5.11  Two principal mechanisms for assisting the service of process have been developed by international agreement. One is applicable to the service within the Member States; the other applies more broadly.

a.  The Service Regulation

5.12  The Service Regulation7 makes provision for the service of process in the Member States of judicial and extrajudicial8 documents in civil and commercial matters. It is designed to make it easier to serve effectively, and to put aside, so far as the Member States are concerned, the real puzzles which can otherwise arise when the question is precisely how documents may be effectively served in the territory of (p. 365) another state. A guide to the working of the Regulation and a list of the notifications which the Member States are required or permitted to make in relation to various matters with which the Regulation deals are to be found on the website of the European Judicial Atlas.9

5.13  In summary form, the scheme of the Regulation is that where it is necessary to serve a document in another Member State, in proceedings which fall within the scope of the Regulation, the methods prescribed by the Regulation are exhaustive and must be followed. The only exceptions to the methods prescribed by the Regulation are the exceptions for which the Regulation makes express provision.

i.  Scope

5.14  The Regulation is broadly permissive, but it is intended to be comprehensive, as may be seen from Article 1.

Article 1:  Scope.

(1) This Regulation shall apply in civil and commercial matters where a judicial or extrajudicial document has to be transmitted from one Member State to another for service there. It shall not extend in particular to revenue, customs or administrative matters or to liability of the State for actions or omissions in the exercise of state authority (acta iure imperii). (2) This Regulation shall not apply where the address of the person to be served with the document is not known. . .

5.15  In other words, when a document falling within the scope of the Regulation has to be transmitted to another Member State for service there, the Regulation applies unless the address of the person to be served is not known. In addition, and as a matter of common sense, it does not apply when the person to be served has a solicitor on the record in local proceedings.10 Apart from those two cases, there are no other exceptions; but as the Regulation makes provision for several possible ways of effecting service, the law is not particularly restrictive.

5.16  It follows that in those countries in which a form of pretended service may be made on a party by being placed on the court file if the party has not provided a local address for service, or by serving it on the court office, or parquet, such procedure is decommissioned and unavailable if the party upon whom service is required to be made is in another Member State.11

ii.  Service via designated agency

5.17  The core of the operation of the Regulation is seen in Articles 2 and 3, which require the Member States to establish transmission and receiving agencies whose task it is to provide for the service of documents which fall within the scope of the Regulation. The procedure is then summarized in Article 4:

Article 4:  Transmission of documents.

(1) Judicial documents shall be transmitted directly and as soon as possible between the agencies designated pursuant to (p. 366) Article 2. (2) The transmission of documents, requests, confirmations, receipts, certificates and any other papers between transmitting agencies and receiving agencies may be carried out by any appropriate means, provided that the content of the document received is true and faithful to that of the document forwarded and that all information in it is easily legible. (3) The document to be transmitted shall be accompanied by a request drawn up using the standard form set out in Annex I. The form shall be completed in the official language of the Member State addressed or, if there are several official languages in that Member State, the official language or one of the official languages of the place where service is to be effected, or in another language which that Member State has indicated it can accept. Each Member State shall indicate the official language or languages of the institutions of the European Union other than its own which is or are acceptable to it for completion of the form. (4) The documents and all papers that are transmitted shall be exempted from legalisation or any equivalent formality. (5) When the transmitting agency wishes a copy of the document to be returned together with the certificate referred to in Article 10, it shall send the document in duplicate.

5.18  There is a practical need to translate the document which is to be served12 into a language which the person to be served will understand, or into the official language of the state or of the place within the state in which service will be made. If this is not done, the person to be served is entitled to refuse to accept service, and is entitled to be told of this freedom.13 But otherwise, it is the task of the receiving agency to effect or to arrange for the service:

Article 7:  Service of documents.

(1) The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State. (2) The receiving agency shall take all necessary steps to effect the service of the document as soon as possible, and in any event within one month of receipt. If it has not been possible to effect service within one month of receipt, the receiving agency shall: (a) immediately inform the transmitting agency by means of the certificate in the standard form set out in Annex I, which shall be drawn up under the conditions referred to in Article 10(2); and (b) continue to take all necessary steps to effect the service of the document, unless indicated otherwise by the transmitting agency, where service seems to be possible within a reasonable period of time.

5.19  The practical advantage of effecting service through the agency of the receiving state is the certificate of service.(p. 367)

Article 10:  Certificate of service and copy of the document served.

(1) When the formalities concerning the service of the document have been completed, a certificate of completion of those formalities shall be drawn up in the standard form set out in Annex I and addressed to the transmitting agency, together with, where Article 4(5) applies, a copy of the document served. . .

iii.  Service otherwise than through designated agency

5.20  However, the procedure of service through the agencies is not mandatory. Other means of service are permitted and provided for by the Regulation, and there is no sense that these alternatives are subordinate to service through the agencies.14 Transmission through consular or diplomatic channels is provided for by Article 13, though the state in which service is to be made is entitled to restrict such service to service on nationals of the state whose document it is. But of rather greater practical importance is service by post:

Article 14:  Service by postal services.

Each Member State shall be free to effect service of judicial documents directly by postal services on persons residing in another Member State by registered letter with acknowledgement of receipt or equivalent.

5.21  No provision is made for Member States to object to service by post on persons within their territory, so service of foreign process by post to an address in the United Kingdom will be effective. The only obvious drawback to this is that there will be no certificate to prove that service was effected if the recipient declines to be co-operative. Otherwise this would appear to be an effective way of making service outside the main provisions of the Regulation. The Regulation also provides for service to be made directly—that is, by means not otherwise regulated or prescribed.

Article 15:  Direct service.

Any person interested in a judicial proceeding may effect service of judicial documents directly through the judicial officers, officials or other competent persons of the Member State addressed, where such direct service is permitted under the law of that Member State.

5.22  This provision has the effect, at least when viewed from one angle, of making the Regulation non-exclusive in its effect. That makes sense, for if the Regulation has as its aim the speeding up of service,15 it would have been a retrograde step for the Regulation to refuse to allow other methods of service which appear to be effective and which may be quicker than service through designated agencies.

5.23  However, a Member State is entitled to notify its objection to service being made on its territory by direct service; and the United Kingdom has done so, albeit not in respect of service in Scotland and Gibraltar. This is as puzzling as it is unsatisfactory, (p. 368) for the tradition of the common law had been to leave parties free to effect service by whichever means they chose. It is not clear why this apparently hostile notification was made, but it is very unsatisfactory and a significant refusal to assist proceedings in the courts of other Member States.

iv.  Defendant not entering appearance

5.24  Where the defendant has failed to enter an appearance, the court is required to pause and check a number of matters before allowing judgment to be entered. This is important as part of the measures taken by this Regulation and the Brussels Regulation to take proper account of the rights of the defence:

Article 19:  Defendant not entering an appearance.

(1) Where a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and the defendant has not appeared, judgment shall not be given until it is established that: (a) the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory, or (b) the document was actually delivered to the defendant or to his residence by another method provided for by this Regulation; and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. (2) Each Member State may make it known, in accordance with Article 23(1), that the judge, notwithstanding the provisions of paragraph 1, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled: (a) the document was transmitted by one of the methods provided for in this Regulation; (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; (c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities or bodies of the Member State addressed. (3) Notwithstanding paragraphs 1 and 2, the judge may order, in case of urgency, any provisional or protective measures. (4) When a writ of summons or an equivalent document has had to be transmitted to another Member State for the purpose of service under the provisions of this Regulation and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiry of the time for appeal from the judgment if the following conditions are fulfilled: (a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal; and (b) the defendant has disclosed a prima facie defence to the action on the merits. An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment. Each Member State may make it known, in accordance with Article 23(1), that such application will not be entertained if it is filed after the expiry of a time to be stated by it in that communication, but which shall in no case be less than one year following the date of the judgment. (5) Paragraph 4 shall not apply to judgments concerning the status or capacity of persons.

5.25  The Article mostly speaks for itself. It is to be interpreted, no doubt, with a view to ensuring that the right of the defendant to have a proper and effective opportunity to defend himself is secured. The United Kingdom has made a qualified (p. 369) declaration in relation to the procedure under Article 19(4), pointing out that in England, it is relevant to enquire whether the person against whom the judgment was given made the application promptly.

b.  Service in accordance with the Hague Service Convention

5.26  Service of documents from states outside the European Union, and service of English documents outside the territory of Member States, may fall within the provisions of the Hague Service Convention of 15 November 1965.16

i.  Service through Central Authorities

5.27  The basic structure of the Hague Service Convention was seen in the setting up of Central Authorities in the contracting states, through which service was to be requested, agreed to, and made. It is, in principle, the designated Central Authority which makes service:

Article 5: 

The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either (a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or (b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. . .

ii.  Service otherwise than through Central Authorities

5.28  In addition to service through requested and made through Central Authorities, the Hague Convention makes provision for service by other means. Diplomatic service is provided for, but of greater interest is Article 10:

Article 10. 

Provided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.

5.29  This, together with the second sentence of Article 5, makes it clear that the purpose of the Convention is to provide additional methods of service, and is not to replace or abolish those less formal methods of service. The ‘freedom’ which is referred to must be taken as a reference to the position under the law of the state whose document is to be served: the Convention does not establish or confer such a freedom; it refrains from interfering with a freedom which is otherwise given by the law. The objections made by individual contracting states to service in accordance with (p. 370) these three informal methods are collated by and are available from the Hague Conference.17

c.  Service in accordance with the Lugano II Convention

5.30  The Lugano II Convention also has a provision dealing with the transmission of documents, which is worth noting. The First Protocol states that:

Article 1. 

(1) Judicial and extrajudicial documents drawn up in one State bound by this Convention which have to be served on persons in another State bound by this Convention shall be transmitted in accordance with the procedures laid down in the conventions and agreements applicable between these States. (2) Unless the Contracting Party on whose territory service is to take place objects by declaration to the Depositary, such documents may also be sent by the appropriate public officers of the State in which the document has been drawn up directly to the appropriate public officers of the State in which the addressee is to be found. In this case the officer of the State of origin shall send a copy of the document to the officer of the State applied to who is competent to forward it to the addressee. The document shall be forwarded in the manner specified by the law of the State applied to. The forwarding shall be recorded by a certificate sent directly to the officer of the State of origin. (3) Member States of the European Community bound by Regulation (EC) No 1348/2000 of 29 May 2000 or by the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extra-judicial documents in civil or commercial matters, signed at Brussels on 19 October 2005, shall apply in their mutual relations that Regulation and that Agreement.

5.31  It follows that where there is a convention between the two states, service must be made in accordance with that Convention, but may also be made in accordance with Article 1(2).18

d.  Service where there is no Convention

5.32  If there is no convention between the state of origin and the state in which service is to be made,service is to be made in accordance with the general rules of English law as these apply to service of process in a foreign country, which means, in effect, that it must be in accordance with the law of the state in which service is to be made.19 But if by some innocent oversight service is not strictly in accordance with the law of the state in which service is made, or otherwise in accordance with the requirements of English law as they apply to service of the document in question, the irregularity in what is, after all, the service of an English document may be overlooked or cured on application to the English court.20(p. 371)

(2)  Assistance in the obtaining of evidence

5.33  A second form of judicial assistance is found in the regulation of procedures for the taking of evidence in one jurisdiction for use in another. Once again, the assistance which an English court may extend to a foreign court will be reflected in the way evidence may be obtained in the foreign country for use in English proceedings. It is correct to characterize it as assistance given to the foreign court, for not only will the evidence bear directly on the trial, but in many civilian systems the obtaining of evidence is a matter for the judge and the court, rather than something for the parties to arrange for themselves. And once again, there is a scheme which is internal to the Member States of the European Union, and another which applies in relation to the outside world.

5.34  It is necessary, or at the very least convenient, for there to be such procedures, for an English court cannot compel a person who is outside the United Kingdom to attend court to give evidence, or to produce documents:21 if the administration of justice is ‘the attribute of sovereignty’,22 then the summoning of ordinary witnesses to court is the same, and it may not properly be done to a witness who is within the territory of another state.23 To this general proposition, two large qualifications are needed in order to complete the picture. First, there is no objection to the obtaining of evidence from someone who is willing to give it without compulsion of law, at least if the giving of the evidence on a voluntary basis is not unlawful according to the law of the place where it is taken. And second, legislation to provide for the taking of evidence provides a more effective solution in the cases to which it applies.

5.35  Of course, if the person from whom the evidence is required is a party to proceedings in England, and evidence from him is required, say as to the whereabouts of assets, this is not evidence which has to be gathered in another state, to which these provisions might otherwise have been applied, but is evidence which should be given and taken in England in the ordinary way.24

a.  The Taking of Evidence Regulation

5.36  The Regulation25 applies in civil and commercial matters, and provides, in effect, for direct communication from one court to another, rather than for requests to be made and transmitted through Central Authorities.(p. 372)

5.37  In summary form, the scheme of the Regulation is that where the witness whose evidence is needed is in another Member State, if the proceedings fall within the scope of the Regulation, the methods prescribed by the Regulation for the obtaining of evidence may, but need not, be relied on. By contrast with the Service Regulation, the Taking of Evidence Regulation is optional, or facilitative, rather than mandatory in its effect.26

5.38  The scope of the Regulation, and the conditions in which it is to apply, is clear enough:

Article 1:  Scope.

(1) This Regulation shall apply in civil or commercial matters where the court of a Member State, in accordance with the provisions of the law of that State, requests: (a) the competent court of another Member State to take evidence; or (b) to take evidence directly in another Member State. (2) A request shall not be made to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.

i.  Obtaining evidence by request to designated court

5.39  The request is sent directly from court to court. It is not open to an individual, who wishes to have evidence taken from a person who might be a witness in proceedings which might be brought at a later date, to invoke the Regulation:27

Article 2:  Direct transmission between the courts.

(1) Requests pursuant to Article 1(1)(a), hereinafter referred to as ‘requests’, shall be transmitted by the court before which the proceedings are commenced or contemplated, hereinafter referred to as the ‘requesting court’, directly to the competent court of another Member State, hereinafter referred to as the ‘requested court’, for the performance of the taking of evidence. (2) Each Member State shall draw up a list of the courts competent for the performance of taking of evidence according to this Regulation. The list shall also indicate the territorial and, where appropriate, the special jurisdiction of those courts.

5.40  The requested court is given, in principle at least, a fixed time within which to complete the exercise of taking evidence. The procedure for taking the evidence will be that of the state in which, rather than for which, the evidence is taken.

ii.  Refusal to testify or to execute the request

5.41  The person from whom the evidence is to be taken is entitled to refuse to give evidence: he may not be put in a worse position than if he had been giving evidence in a court in the state in which he is to be examined, or in a worse position than if he had been giving evidence in a court for which the evidence is being taken.

Article 14:  Refusal to execute.

(1) A request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence, (a) under the law of the Member State of the (p. 373) requested court; or (b) under the law of the Member State of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court. (2) In addition to the grounds referred to in paragraph 1, the execution of a request may be refused only if: (a) the request does not fall within the scope of this Regulation as set out in Article 1; or (b) the execution of the request under the law of the Member State of the requested court does not fall within the functions of the judiciary; or (c) the requesting court does not comply with the request of the requested court to complete the request pursuant to Article 8 within 30 days after the requested court asked it to do so; or (d) a deposit or advance asked for in accordance with Article 18(3)28 is not made within 60 days after the requested court asked for such a deposit or advance. (3) Execution may not be refused by the requested court solely on the ground that under the law of its Member State a court of that Member State has exclusive jurisdiction over the subject matter of the action or that the law of that Member State would not admit the right of action on it. (4) If execution of the request is refused on one of the grounds referred to in paragraph 2, the requested court shall notify the requesting court thereof within 60 days of receipt of the request by the requested court using form H in the Annex.

5.42  The result is that the grounds for refusal are very limited: no doubt mutual trust and confidence among the judicial institutions of the Member States will mean that a requested court will do its best to co-operate, and will construe the exceptions to the Regulation, and the grounds on which a refusal to execute the request may be based, in a restrictive manner.29

iii.  Obtaining evidence by the requesting court itself

5.43  The second form of judicial co-operation which is provided for by the Regulation arises when the requesting court wishes, and asks, to take the evidence itself. It may do this and, subject to conditions, the door is to be held open for it; but in such cases, the witness may not be compelled to testify, and must be informed that he is not compelled to testify.(p. 374)

Article 17:  Direct taking of evidence by the requesting court.30

(1) Where a court requests to take evidence directly in another Member State, it shall submit a request to the central body or the competent authority referred to in Article 3(3) in that State, using form I in the Annex. (2) Direct taking of evidence may only take place if it can be performed on a voluntary basis without the need for coercive measures. Where the direct taking of evidence implies that a person shall be heard, the requesting court shall inform that person that the performance shall take place on a voluntary basis. (3) The taking of evidence shall be performed by a member of the judicial personnel or by any other person such as an expert, who will be designated, in accordance with the law of the Member State of the requesting court. (4) Within 30 days of receiving the request, the central body or the competent authority of the requested Member State shall inform the requesting court if the request is accepted and, if necessary, under what conditions according to the law of its Member State such performance is to be carried out, using form J. In particular, the central body or the competent authority may assign a court of its Member State to take part in the performance of the taking of evidence in order to ensure the proper application of this Article and the conditions that have been set out. The central body or the competent authority shall encourage the use of communications technology, such as videoconferences and teleconferences. (5) The central body or the competent authority may refuse direct taking of evidence only if: (a) the request does not fall within the scope of this Regulation as set out in Article 1; (b) the request does not contain all of the necessary information pursuant to Article 4; or (c) the direct taking of evidence requested is contrary to fundamental principles of law in its Member State. (6) Without prejudice to the conditions laid down in accordance with paragraph 4, the requesting court shall execute the request in accordance with the law of its Member State.

5.44  However, if a court has power under its own procedural law to appoint an expert to go and conduct investigations in another Member State, it is not obliged to act within the framework of Article 17, or to request the foreign court to take the evidence for itself.31 The Regulation does not govern exhaustively the taking of evidence; rather, it aims to facilitate it.32 The point is developed further in the next paragraph.

b.  Obtaining evidence outside the Regulation framework

5.45  It might have been supposed that the Regulation was to serve as the exclusive mechanism by which evidence was to be taken in one Member State for use in another. But if that were really to be so, it might have been seen to impede those cases in which evidence might in fact have been obtained by informal means not requiring the participation of a court in the state in which the witness is to be found. As the avowed purpose of the Regulation was to make it easier to obtain evidence in one Member State for use in another, and to reduce obstacles to the obtaining of such (p. 375) evidence,33 there was no reason to suppose that its mechanism was intended to be exclusive: in this respect it is very different in scope and ambition from the Service Regulation. Accordingly, if a court has power under its own law to summon a witness from another Member State, and to hear him if he is willing to attend, it is free to exercise that power; it is not constrained to approach the case as one in which the evidence is required to be taken by examination in the Member State in which the witness resides.34 Indeed, this may even result in evidence of a better quality than that which is taken by an examiner in another Member State and then transmitted back in written form; there was no reason to exclude it.35 It is a fortiori that if it has and exercised power under its own law to require a defendant to produce evidence, no question of needing to engage the Regulation applies.36

c.  The Hague Evidence Convention

5.46  The obtaining of evidence from witnesses outside the European Union, and the taking of evidence in England for the use of courts in states outside the European Union, may fall within the provisions of the Hague Evidence Convention of 15 November 1965.37 So far as concerns requests made by foreign judicial authorities for the obtaining of evidence in England, the provisions of the Evidence (Proceedings in Other Jurisdictions) Act 1975 implement the Hague Convention in England, though the Act38 is not limited to cases in which the foreign court makes the request under the terms of the Hague Convention. It may not be altogether clear, but it is generally understood that while the Hague Convention makes provision for the obtaining of evidence, it does not preclude other methods which may exist in national law.39 It would be strange if it did, and if there is an analogy to be drawn with the Taking of Evidence Regulation, it would point to this conclusion as well.

i.  Scope and method

5.47  The basic scheme of the Convention is that requests from one judicial authority to another are transmitted in the form of a Letter of Request, and that the procedure is to be made available in civil and commercial matters:40

Article 1. 

In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the (p. 376) competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act. A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated.

5.48  The meaning of ‘civil and commercial matters’, in this context and in the implementing legislation in the United Kingdom, has been held to extend as far as the obtaining of evidence for use in foreign proceedings to collect taxes. Such matters are civil or commercial, even though they may be based on foreign laws which an English court would not itself enforce if called upon to do so;41 and given that the assistance was sought to enable the state to bring proceedings in its own courts, there was no reason to refuse to assist it.

5.49  But the contracting states were permitted to make a reservation in relation to evidence sought by way of pre-trial discovery of documents:

Article 23. 

A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

5.50  The United Kingdom duly made such a declaration which makes clear, in a manner which is more precise than might have been expected, the full extent of its unwillingness to execute certain forms of Letter of Request seeking information from potential witnesses. The substance of the declaration is reproduced in the 1975 Act.42 It is obviously of significance in relation to Letters issued and sent from the United States of America.

ii.  Requests made through Central Authorities

5.51  The basic structure of the Convention is to be seen in the setting up of Central Authorities in the contracting states. The request is made by a Central Authority in one state to another; it is the role of the other to transmit the request to the authority competent to execute it.

iii.  Obtaining the evidence in accordance with the Letter of Request

5.52  The person who is to give evidence may be compelled to do so, but has also the privileges available to him under the law of the state in which the evidence is taken, as well as those provided by the law of the state in which the evidence will be given.

Article 10. 

In executing a Letter of Request the requested authority shall apply the appropriate measures of compulsion in the instances and to the same extent as are provided by its internal law for the execution of orders issued by the authorities of its own country or of requests made by parties in internal proceedings.

Article 11. 

In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence (p. 377) (a) under the law of the State of execution; or (b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority. A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.

iv.  Obtaining the evidence otherwise than by Letter of Request

5.53  It is not necessary to proceed by Letter of Request in the circumstances outlined by Article 17.

Article 17. 

In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State if (a) a competent authority designated by the State where the evidence is to be taken has given its permission either generally or in the particular case; and (b) he complies with the conditions which the competent authority has specified in the permission. A Contracting State may declare that evidence may be taken under this Article without its prior permission.

5.54  Article 17 is really only confirmation that a state which is willing to allow another state to appoint a person to come and take evidence is not prevented from giving effect to that willingness. It supports the general point that while the Convention provides for the taking of evidence, it does not claim to be exclusive of all methods which are not mentioned by it.

d.  Obtaining evidence outside the provisions of a Convention

5.55  Where there is no convention to justify it, the court may still issue a Letter of Request to the judicial authorities of a foreign country, asking them to arrange for evidence to be taken: Letters of Request require no convention to justify their issue, though the obligation to accede to the request will be entirely a matter for the law of the state addressed. Alternatively, the court for which the evidence is required may appoint a special examiner to go and take the evidence, but it will only do this if the foreign state will not object to the exercise of foreign judicial power on its territory.43 It will issue a Letter of Request to have a person, who is not party to proceedings, give evidence or produce documents only in circumstances in which it would have made such an order against the witness if he had been in England.44

5.56  The fact that an English court has an inherent power to control its own procedure means that it may direct the giving or taking of evidence overseas if there is good reason to do so and if there will be no affront to the foreign state within whose (p. 378) territory the evidence is to be taken. For example, if a defendant is unable, or practically unable, to travel to England to give evidence, there is no difficulty in principle in allowing him to give evidence, and to be cross-examined on that evidence, while he remains in the foreign country.

5.57  And English law does not prevent a person from acquiring evidence in support of his case on the territory of a foreign country: if the obtaining of evidence is a matter for the parties themselves, as it is, the question of where they find it and how they do it is not one for the court. If the obtaining involves the use of formal procedures available to individuals in the foreign state, there will generally be no objection to their use.45

e.  Evidence (Proceedings in Other Jurisdictions) Act 1975

5.58  In cases falling outside the Taking of Evidence Regulation, an application from a foreign court for the taking of evidence in England is dealt with under the Evidence (Proceedings in Other Jurisdictions) Act 1975, whether the request is made pursuant to a convention or from a country which is not party to a convention with the United Kingdom.46 There is no objection to the taking of evidence in England for use in foreign proceedings without the involvement of the state, so long as this does not require any measure of compulsion.47 But if the application to the court is made pursuant to a Letter of Request issued by or on behalf of a foreign court, and the evidence is to be obtained for civil proceedings48 before the foreign court which are contemplated or pending, then the court may exercise the powers conferred on it by the Act.

Section 2.  Power of United Kingdom court to give effect to application for assistance.

(1) Subject to the provisions of this section, the High Court, the Court of Session and the High Court of Justice in Northern Ireland shall each have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the part of the United Kingdom in which it exercises jurisdiction as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose. (2) Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision (a) for the examination of witnesses, either orally or in writing; (b) for the production of documents; (c) for the inspection, photographing, preservation, custody or detention of any property; (d) for (p. 379) the taking of samples of any property and the carrying out of any experiments on or with any property; (e) for the medical examination of any person; (f) without prejudice to paragraph (e) above, for the taking and testing of samples of blood from any person. (3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court. (4) An order under this section shall not require a person (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power. (5) A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the court making the order.

5.59  The effect of Section 2 is, in effect, that a court will willingly49 accede to a request for what it considers to be evidence which will be admissible at trial, but that it will not grant a request for information which is more accurately seen as being in the nature of a fishing expedition.50

(3)  Orders freezing or ordering the preservation of assets

5.60  As said before, the making of orders freezing assets is not straightforwardly represented as a form of judicial assistance rendered in respect of proceedings before a foreign court, or rendered to a foreign court. The reason is plain enough: the foreign court is rarely, if ever, involved in the application which will be made to the English court by the claimant who acts, in this respect, in his own interest. It is a measure by which a court assists a claimant who may find, when he has obtained judgment and seeks to enforce it, that there are no available assets to enforce it against. But the fact that relief can be granted even though the trial will not or did not take place in England allows it to be seen as a form of judicial assistance.

a.  The freezing injunction: general

5.61  The general power of a court to grant a freezing injunction against a defendant to proceedings before the court, and which had nothing to do with private (p. 380) international law, was discovered by the courts51 to be a part of English equity six years prior to the existence of the equitable power being confirmed by statute.52 In order to obtain the order, the person to whom it is addressed must be, or must be made, subject to the jurisdiction of the court by the service upon him of the document which institutes the claim for this relief, whether this is done within or out of the jurisdiction. It is therefore necessary to examine the rules on jurisdiction and service of the application made to obtain the order.

5.62  The order itself is made against the defendant personally, requiring him to not deal with or dissipate the assets pending further order of the court. The purpose of the order is to make it more likely that a judgment will be practically enforceable. It was originally controversial: the idea that a man’s freedom to deal with his own property might be restricted, and very prescriptively at that, long before there has been judgment against him—indeed, even before a claim form has been issued and served on him—is not one with immediate appeal. But the ease with which assets can be moved out of harm’s way, which was plain enough to the Court of Appeal two generations ago, but which is many times more obvious today, may very well mean that unless the defendant’s assets are immovable (and even if they are, their ownership can be disposed of) there may be nothing left upon which to execute judgment. The choice for the courts and for the legislature was to opt for the lesser of two evils.

5.63  In addition to its effect on the person against whom the order is made, a person to whom the order was not addressed, but who is notified or otherwise knows of it, risks placing himself in contempt of court if he assists the defendant to act or to cause acts to be done in contravention of it.53

5.64  Because the effect of the order may be intended to apply in relation to assets in England, or elsewhere within the Member States, or in the rest of the world, and because it may be seen to have an effect on persons other than the defendant both inside and out of the jurisdiction, it is necessary to examine the rules on the territorial reach of the order, both as to the assets and as to the persons who, in addition to the defendant against whom the order is made, may be adversely affected by it.

5.65  The order may be applied for and made prior to the formal commencement of proceedings, or after judgment, or at any point in between. It is necessary to outline the rules which apply to its grant in a domestic case before proceeding to consider it in its role as a form of judicial assistance in relation to judicial proceedings in another country.(p. 381)

b.  Jurisdiction to make the order; service of the document claiming the relief

5.66  The document by means of which the order is applied for must be served on the person against whom the order is to be made; though in the case of urgency the application may be made without notice to the respondent and service made after the event together with the order made by the court. To take the straightforward case first, if the order is sought against someone who has already been made defendant to substantive proceedings, the court will have jurisdiction to make the order as part of its general jurisdiction over the matter before it, and no additional question of jurisdiction will arise, whether under the Brussels I Regulation54 or otherwise.

5.67  If substantive proceedings have not yet been instituted when the application is made, if the respondent is in England he may be served with the application as of right; if not, permission to serve him out of the jurisdiction may be obtained by reference to CPR Part 6 and the associated Practice Direction, which now55 contains a provision specifically devised for this kind of application.56 If the claim is made in a civil or commercial matter, and if the respondent is domiciled in a Member State but not in the United Kingdom, the fact, if it is a fact, that the court does not or would not have jurisdiction over the defendant in relation to the substance of the claim57 does not furnish the defendant with a jurisdictional objection to the application for relief, provided only that the relief applied for falls within what is now Article 35 of the Brussels I Regulation. If the substance of the relief applied for falls within Article 35, the court is free to apply its own jurisdictional rules and discretion in respect of such relief. This is true even if the courts of another Member State have exclusive jurisdiction regardless of domicile in the substantive proceedings under what is now Article 24 of the Regulation;58 it is true even when there is no Member State which has jurisdiction over the substance of the claim.59 This is the result of Article 35 of the Brussels I Regulation:

Article 35: 

Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.

5.68  In other words, Article 35 does not confer jurisdiction on a national court, but removes a barrier to jurisdiction which would otherwise have prevented the court’s having jurisdiction. The question of which jurisdictional rules do regulate the application for relief is therefore left to be determined by the residual rules (p. 382) of jurisdiction which are, by necessary implication rather than by express words, incorporated into Article 35 for this purpose.60

c.  Relief falling within the scope of Article 35

5.69  For the claimant or applicant to take advantage of Article 35, it is necessary that the measure for which he applies falls within the material scope of that Article—that is to say, it must be properly regarded as ‘provisional’ or ‘protective’: a measure which is ‘intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case’.61 A freezing injunction is just that, for it is not predicated on a final assessment of the merits of the claim and, when considered together with the undertaking in damages, fortified by a guarantee as the court may consider necessary, it is fully reversible, at least in principle.62

d.  The location of the property referred to in the order: English law

5.70  In general, the freezing injunction does not give the applicant a title to the property, or any form of priority in the insolvency of the respondent. It merely orders the person to whom it is addressed not to dissipate or alienate the assets described in the order; but ancillary to the order may be a further order by which the person against whom the order is made is required to disclose the whereabouts of identified and unidentified assets. This is a rather useful power for the applicant to be able to invoke; indeed, it is sometimes said to be more useful than the freezing injunction itself.63

5.71  As a matter of English law, it is not necessary for the injunction to be restricted in material scope and limited to imposing obligations on the respondent only in respect of property lying within the territorial jurisdiction of the court. As the very nature of the order is that it does not purport to affect title to the property, there is no obvious reason to confine its ambit to the property of a person, over whom there is jurisdiction, which is within the jurisdiction. The order may therefore be made on a ‘worldwide’ basis,64 and although this is was originally, and is still sometimes, said to be an exceptional form of order, it appears that yesterday’s exceptional measure is so often destined to become tomorrow’s commonplace. But even if the justification of the order is that the defendant is subject to the personal jurisdiction of the court, it is obvious that for an English court to make an order which has any kind of impact on the freedom to deal with assets which are within the territory of (p. 383) another state is a matter of some sensitivity. For legal systems have their own views about the freedom of owners to dispose of their property, and the freedom to be discreet about what and where a person’s property is. For the English court to treat the issue of location of property as being of only marginal relevance, given that the court has personal jurisdiction, would be wrong, for even if the English court considers that personal jurisdiction over the respondent is all that it needs, a court in the place where assets actually are, and may be dealt with, may not share this view. Of course, where the assets are intangible, as they will frequently be, concerns about location, and restrictions upon the power of a court to act which are framed in terms of location, are more difficult to evaluate.

e.  The location of property when relief is sought on the basis of Article 35

5.72  The most problematic case arises when the order has within its scope, and plainly aims to refer to, assets physically65 located within the territorial jurisdiction of another Member State. In principle, if the court making the order has jurisdiction over the substance of the claim, it has full and unlimited power, so far as the jurisdictional rules of the Regulation are concerned, to make orders which relate to the proceedings. It may make the ancillary order with reference to property within the jurisdiction of other Member States, as its jurisdiction to act will not be derived from Article 35 but from some other provision of Chapter II of the Regulation.

5.73  But if the court does not have such jurisdiction over the substance of the proceedings, the relationship between limits associated with Article 35 and the manner in which an English court understands its order is less straightforward. The source of the difficulty lies in the interpretation of the statement of the European Court

that the granting of provisional or protective measures on the basis of Article 35 is conditional on, inter alia, the existence of a real connecting link between the subject-matter of the measures sought and the territorial jurisdiction of the Member State of the court before which those measures are sought.66

That statement is generally considered to mean that an English court may not use Article 35 to reach into another Member State and make orders which affect property there. The sense of this is plain at several levels: the courts for the place where the property is are best place to make and unmake orders in respect of it; and the person against whom the order is made, whose substantive liability is far from established, will not find himself faced with several courts concurrently making orders in relation to the same property.67 The argument to the contrary would be that as the English order does not affect the property directly, but only acts as a direction to a person who (p. 384) has been made subject to the personal jurisdiction of the court, the ‘real connecting link’ to which the Court referred is assessed by reference to the person to be restrained, rather than the location of the property. If that is accepted, the residence of the person within the jurisdiction of the English court would be sufficient for the English court to rely on Article 35 and to be unconcerned by the actual location of the assets which are the indirect but intended target of the order.

5.74  The general conclusion to be drawn from the cases is that if there is property in England and the order is made against the defendant in relation to that property only, there is no problem, but if the defendant is not resident or present in England, it is unlikely that an order may be made in relation to property outside England;68 and that this limitation results from a blending of the statement of the European Court with the general discretion of the English court. But where the defendant is resident, or perhaps even present, within the jurisdiction of the court, an order may be made against him in relation to his property without geographical restriction, the residence or presence satisfying the requirement of a real connecting link.69 It is yet to be seen whether the European Court would agree with this interpretation of its ‘real connecting link’ principle. For if one looks past the technical form of the English order and concentrates on the substance, it is undeniable that it has an effect on property which may be in another Member State.

f.  The effect on non-parties, or persons not directly addressed by the order

5.75  A person who with sufficient knowledge of a court’s order assists the respondent to breach the terms of the order is himself a contemnor, and liable to be dealt with accordingly.70 This is the explanation for the fact that the first people to hear about the grant of a freezing injunction are often the bankers with whom the defendant is believed to have an account. This fact may make life particularly problematic for bankers in England, but banks may be established in England as well as overseas, and an overseas branch may face demands from a respondent for the release of funds standing to his credit in that jurisdiction. Indeed, in principle any non-party overseas may be placed in an awkward position, or in a position the clarification of which will cost money. If one adds the observation that the recognition of judgments under Chapter III of the Regulation is meant to give judgments the effect in other Member States which they have in the state of origin, the problem is made more obvious.

5.76  Two factors alleviate the difficulty. First, an injunction will usually be required to contain express wording by which it makes clear that it is not intended to have any (p. 385) effect on persons overseas unless and until it has been ratified by a court in that foreign jurisdiction. The standard form of words71 makes the position clear in a way which the general rules of private international law would not have been able to. It provides that:

Except as provided below, the terms of this order do not affect or concern anyone outside the jurisdiction of this court. The terms of this order will affect the following persons in a country or state outside the jurisdiction of this court (a) the Respondent or his officer or agent appointed by power of attorney; (b) any person who (i) is subject to the jurisdiction of this court; (ii) has been given written notice of this order at his residence or place of business within the jurisdiction of this court; and (iii) is able to prevent acts or omissions outside the jurisdiction of this court which constitute or assist in a breach of the terms of this order; and (c) any other person, only to the extent that this order is declared enforceable by or is enforced by a court in that country or state. Nothing in this order shall, in respect of assets located outside England and Wales, prevent any third party from complying with (a) what it reasonably believes to be its obligations, contractual or otherwise, under the laws and obligations of the country or state in which those assets are situated or under the proper law of any contract between itself and the Respondent; and (b) any orders of the courts of that country or state, provided that reasonable notice of any application for such an order is given to the Applicant’s solicitors.

5.77  The second factor limiting the effect of the order overseas is that a ‘judgment’ to which the automatic recognition and enforcement provisions of Chapter III of the recast Brussels I Regulation72 will apply excludes a number of orders which would have been problematic—according to Article 2(a), the true intention of which is amplified in the Recitals:73

Article 2(a) 

. . . For the purposes of Chapter III, ‘judgment’ includes provisional, including protective, measures ordered by a court or tribunal which by virtue of this Regulation has jurisdiction as to the substance of the matter. It does not include a provisional, including protective, measure which is ordered by such a court or tribunal without the defendant being summoned to appear, unless the judgment containing the measure is served on the defendant prior to enforcement.

5.78  In other words, the broad distinction between orders made by courts having jurisdiction over the substance, which may make any and all such orders as are required, (p. 386) and orders made by courts with no jurisdiction, is to be incorporated into the structure of the text of the Regulation.

g.  Effect of the substantive proceedings being before the courts of another state

5.79  In most cases, the court makes its order in relation to proceedings which are to take place in an English court. But, as has been made clear in the examination of jurisdiction, English law allows the court to make an order where the substantive proceedings are to take place in a foreign state. The material parts of the Civil Jurisdiction and Judgments Act 1982 provide as follows:

25.  Interim relief in England and Wales and Northern Ireland in the absence of substantive proceedings.

(1) The High Court in England and Wales or Northern Ireland shall have power to grant interim relief where (a) proceedings have been or are to be commenced in a Brussels or Lugano Contracting State or a Regulation State other than the United Kingdom or in a part of the United Kingdom other than that in which the High Court in question exercises jurisdiction; and (b) they are or will be proceedings whose subject-matter is within the scope of the Regulation as determined by Article 1 of the Regulation (whether or not the Regulation has effect in relation to the proceedings). (2) On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it. (3) Her Majesty may by Order in Council extend the power to grant interim relief conferred by subsection (1) so as to make it exercisable in relation to proceedings of any of the following descriptions, namely (a) proceedings commenced or to be commenced otherwise than in a Brussels or Lugano Contracting State or Regulation State; (b) proceedings whose subject-matter is not within the scope of the Regulation as determined by Article 1 of the Regulation;. . . (7) In this section ‘interim relief’, in relation to the High Court in England and Wales or Northern Ireland, means interim relief of any kind which that court has power to grant in proceedings relating to matters within its jurisdiction, other than (a) a warrant for the arrest of property; or (b) provision for obtaining evidence.

5.80  The power referred to in Section 25(3) was exercised in full in 1997,74 and the court may therefore grant interim relief, of which the most useful will be the freezing injunction and the ancillary orders associated with it, in relation to proceedings taking place or intended to take place in any foreign court,75 regardless of whether the substance of the claim would be regarded as a civil or commercial matter.

5.81  It is in this context that the English courts have come to look on the exercise of the power to grant relief as ‘assisting’ a foreign court.76 It is not clear that this is the best way of viewing matters, or of gaining an undistorted perspective on the (p. 387) issues which need to be addressed. Assistance, if that is the best way of thinking of the order when made, is plainly extended to the claimant who applies for it, but whether it is right to think of it as given to the foreign court is more very doubtful. The foreign court will be able to give its judgment with or without the order made by the English court: it is in this respect that the provisions which ease the service of process and which result in the obtaining of evidence are more aptly described as assisting the foreign court. It is less obvious that the foreign court has any particular interest in what happens after that: the judgment creditor takes his judgment, and seeks to enforce it as and where the law allows. It does not obviously assist the adjudicating court in anything it has to do if English courts decide to intervene on the side of the claimant. Insofar as the judgment creditor will seek to enforce the judgment within the territorial jurisdiction of the court which gave judgment, it is hard to see what assistance may be called for from outside. Where the judgment creditor seeks to enforce the judgment in a third state, for the English court to consider that its order ‘assists’ the court which gave judgment in the first place, and which is presumably functus officio, is at best artificial, and is unwarranted because it really is not true. It might well be better if the law stopped pretending that a foreign court was being assisted in these circumstances. It is, after all, hard to see why one would not wish to assist a foreign court. Remove that distraction from the picture, and the issues begin to look rather different.

5.82  When exercising the power which is given by Section 25, the express limitation imposed on the court requires it to ask whether the fact that the trial of the substance will take place outside England makes it ‘inexpedient’ to make the order applied for. The assessment of whether it is ‘inexpedient’ to make the order asks a number of questions, mostly concerned with the impact this would have on the foreign court itself.77 The order should not be made if it will interfere with the supervision of proceedings by the primary court, that is to say, the court which has jurisdiction over the merits. The order should not be made if it would contradict or duplicate an order made by the primary court. The order should not be made if the primary court had the opportunity to make such an order for itself but can be seen to have decided not to: in fact, this probably falls within the principle of not contradicting decisions made by the primary court. It may also be inexpedient to make the order if it would conflict with orders made by the courts for the place where the assets are or the defendant resided. In short, if the order would be a nuisance or distraction to the court whose business the proceedings are, it will not be proper to make it. And it may also be inexpedient to make an order which the defendant would be able to resist with impunity, for it will tend to bring the law into disrepute.

5.83  However, it has been said that if the primary court was prevented from making the order applied for in England, or an order analogous to that, it may well be (p. 388) expedient to ‘assist’ it by making the order. This suggestion, that the court wished to do what its own law prevented its doing, so that an English court may properly assist, requires closer analysis. It is clear that a Federal Court in the United States, for example, has no general jurisdiction to order a pre-trial freezing injunction: it is not just that it may not grant such relief, but that it is contrary to the US constitution for such orders to be made.78 In such circumstances, the proposition that the foreign court would be ‘assisted’ by an order made by the English court will not be one which strikes everyone in the same way. It may not be good enough to say that the foreign court can decline the assistance if it does not value it,79 or that the obligations of comity are seen more in the fact that a court has a duty to do what it can to assist, as distinct from a concern not to injure the feelings of the foreign court,80 or that the English court is required to exercise the powers found in its own law, rather than impersonating, or pretending to act as, the foreign court.

5.84  If the idea of giving assistance to the foreign court were really meant to be taken seriously as a justification for relief, it is surprising that no real attempt is made to discover whether the foreign court would welcome the order. For a court to exercise its powers in response to a letter of request would be one thing, but for a court to debate whether a foreign court would be assisted by an English order, when the foreign court has expressed no such view, is really rather odd. But the truth is that the assistance is not sought by the foreign court itself. It is sought by one of the parties, and is opposed by the other. The real question posed by Section 25 ought to be whether it is expedient to take sides with the claimant against the defendant in a case in which the substance of the dispute will not be before the English court for evaluation of its merits. The answer may be that it is not inexpedient if the assets whose existence justifies the order are in England, but otherwise it is none of the court’s business, and if this is the right way to formulate the question, it would not then be expedient to grant relief.

(4)  Orders to provide security for costs

5.85  The concern for a defendant sued by a claimant who does not appear to have deep pockets or a sufficient bank account is that if he defeats the claim and obtains an order for costs, he may not be able to enforce the costs order: rather as with the claimant who fears that the defendant will dissipate his assets before, and in order to prevent, the enforcement of his judgment, the defendant fears that the claimant will prove to be unable to satisfy the order for costs which would be the usual result of a successful defence. The law therefore allows him to apply, and the court to order, that the defendant provide security for the payment of costs if the defendant (p. 389) is not resident in England and there are in the circumstances good reasons to make the order. The jurisdiction is statutory.81

5.86  It has ceased to be lawful to draw the sharp distinction formerly drawn between claimants ordinarily resident in England and those not so resident. The immediate effect of a distinction drawn in these terms would have been to discriminate on grounds of nationality against nationals of other Member States, in circumstances in which the discrimination could not be objectively justified. It would be to discriminate because it would have been to make it more likely that an order would be made against a claimant who was a national of a Member State other than the United Kingdom, for those resident in other Member States tend not to be British nationals. This would therefore have been indirectly82 discriminatory on ground of nationality. There would be a lack of objective justification, because the Brussels I Regulation means that it is practically as easy to enforce a costs order against an unsuccessful claimant in England as it is in the other Member States.83 If the claimant is resident in a Member State other than England, his non-English residence is not a ground for, or something which plays any part in the decision about, the ordering of security for costs.84

5.87  By contrast, where the claimant is not resident in a Member State, the court may order security, and may use residence as one of the bases which makes it appropriate for the order to be made. No doubt this does discriminate on grounds of nationality, but it will not be discrimination against those who are nationals of Member States, and it is objectively justifiable.85

5.88  A defendant, even if resident abroad, is practically never ordered to give security, because defendants have no lawful choice but to appear when summoned. No principle of reciprocity sustains the contention that if a non-resident claimant may be required to put up security, then that which is sauce for the goose is sauce for the gander.86 It is therefore necessary to determine whether a party is claimant or defendant—a question that is not always quite as easy to answer as it is to ask, (p. 390) for a defendant who launches a counterclaim is obviously a claimant as well as a defendant. A broad and reasonable view must in practice be taken, which will tend to ask whether the defendant is counterclaiming within the general ambit of the claim against him, in which case the claimant cannot expect to be able to ask for security, or opening up a distinctly new front, which, even though permitted by the procedural rules which govern counterclaims, is not within the general scope of the original claim. If this latter judgment can be made, security can in principle be ordered.87

(5)  Judicial intervention: the anti-suit injunction

5.89  The final matter considered in this chapter is the anti-suit injunction, by means of which an English court may require a person, who is or who has been made subject to its personal jurisdiction, to discontinue (or to not institute) proceedings before a foreign court. It looks very much like an act of interference with proceedings before that foreign court, and the appearance really does not mislead. There may be many other things which can be said about it, and the order may in many ways be an extremely important component of English commercial law, and of common law systems generally, but it allows the English court to dictate the path which will be taken in proceedings before a foreign court.88 That is a remarkable thing.

5.90  To understand the law it is necessary to start by taking a step back. As a matter of English law, it has long been understood that commencing or continuing proceedings before a foreign court may be shown to be a wrongful act which is liable to restraint in the same way as the court may restrain any other wrongful act.89 The restraint—or, more properly, the making of orders which require a respondent to heed the call of conscience and exercise self-restraint—is, on one view, no more than the exercise by a court of a power which one assumes every court must have, namely to restrain the commission of civil wrongs. On the face of it, there is no particular reason to consider the restraint of a respondent who is acting wrongfully in bringing proceedings before a foreign court to be different in kind from the restraint of a respondent who proposes to do any other wrongful thing—such as the supply of goods to a new distributor while cutting off supplies to the old, or the publication of statements of material supposed to be defamatory or confidential or secret or valuable—within the territory of a foreign state. The fact that it is being (p. 391) done within the territory of a foreign state is of no real jurisdictional90 significance. In these cases, no one would suggest that the only court which could properly make the order would be the court of the state within which the publication or supply was taking place.

a.  Irrelevance of fact that the foreign court sees no wrong

5.91  Neither would anyone suggest that, just because what the respondent was doing or proposing to do would not be regarded as wrongful according to the law of the place where he was doing or proposing to do it, it must follow that an English court’s hands are tied. On this issue the common law rules of private international law tell the English court how to assess the ultimate rightness or wrongness of conduct which seems unjustifiable as a matter of English domestic law but unobjectionable according to the law of the place where it is carried out: this is the very thing for which rules for identification of the applicable law are made. No doubt it would be open to a claimant to go to a court in the foreign state and complain if he considered this to be the best way forward, but that does not alter the fact that the English court, if it has personal jurisdiction over the respondent, may order him to restrain himself if, in the light of any rules which point the court to the applicable law, it finds there to be a wrong which may be and should be restrained.

5.92  This is how it may appear when a respondent has recourse a court in a foreign country: it may be lawful for him to have recourse to the court if lawfulness is assessed by reference to the jurisdictional and other applicable laws of the foreign state, but it may be wrongful if assessed by reference to other criteria, such as the fact, if it is a fact, that the respondent contracted with his counterparty not to do it. It does not take a degree in advanced sophistry to contend that an act may be wrongful even though the law of the place where the act is done sees nothing to object to in it. If an English court with personal jurisdiction over the respondent finds the institution or continuation of proceedings to be a breach of contract, it may order the respondent to stop, and it may attach all the usual penal notices to its order, warning him of the dire consequences of ignoring the injunction and of placing himself in contempt of court.

b.  Interference as an indirect but inescapable consequence

5.93  If the court makes the order, it will be interfering with proceedings before the foreign court: there is no getting away from this fact. The foreign judge is likely to think so,91 and the man on the Clapham omnibus is likely to think so as well. The response traditionally given, that the court is neither interfering nor pretending to interfere with the foreign judge or the foreign court, as can be seen from the (p. 392) fact that the order is not made against the foreign judge or the foreign court, lacks candour. A justification along the lines of ‘this was never my intention’ or ‘nothing could have been further from my mind’ gets nobody anywhere: examples from real life make the point so clearly that it speaks for itself. English domestic law takes the view that ‘interference with the due administration of justice’ is the very essence of contempt of court,92 and that contempt may be committed by someone against whom no order has been made. Given that, for an English court to make an order which will prevent a foreign court doing justice according to its law looks very difficult to justify. Second, it suggests that an English court is capable of doing only one thing at once, and that if it is restraining wrongdoing it cannot at the same time be interfering with a foreign court, which is not credible. Third, the fact that the interference is administered through the forced and unwilling agency of the respondent, who is constrained to inform the foreign court that he has no choice but to discontinue the proceedings, does not begin to challenge the idea that there is interference with the foreign court. Fourth, as a matter of English domestic law, when an injunction is ordered to restrain a respondent, any other person who knowingly assists the respondent in breaching the injunction is liable to be found to be in contempt of court: it is no defence to the non-party that the order was not aimed at him, or that he was simply performing a pre-existing legal obligation to the respondent. If that is how an English court understands its own injunctions, the proposition that a foreign court might feel that it was meant to implicate the court as well, or aimed to deliver it a glancing blow, is not hard to understand. After all,93 there is nothing in the usual form of the order to make it clear that there is to be no effect on anyone other than the respondent against whom the order is directly made.

c.  Irrelevance of foreign rules of jurisdiction

5.94  All that said, when the English court grants an injunction, which is known in short and for convenience as an anti-suit injunction, it certainly does not consider, still less rule on, whether the foreign court had jurisdiction under its own law. It does not rule on this perhaps because it cannot (this being a kind of foreign public law, of a sovereign character, which an English court has no authority to adjudicate or to apply), but also, and more importantly, because it is not material to its decision. The cause of action giving rise to the injunction as remedy is not liable to be defeated by the plea that what the respondent was doing was wholly in accordance with the law of the place where he did it. It is in this that the truly remarkable characteristic of the anti-suit injunction is to be seen: the jurisprudence takes no obvious account (p. 393) of the legality of the conduct of the respondent according to the law of the place where the respondent is doing the acts which are sought to be restrained.

d.  The need for caution

5.95  There are countless cases in which the courts have said that the power to order the injunction is to be exercised cautiously, because of the adverse effect which it may have on the foreign court, and on the foreign judge doing his or her duty according to the law. This note-to-self is far from effective. The result of the cases, or some of them at least, can leave the impression that little more than lip-service was paid to such concerns for self-restraint: the restraint of demonstrated wrongdoing appears to be more pressing a need than is a concern for the view of the foreign court. To put the same point another way, the cases in which an English court has found there to be wrongdoing of the kind which justifies an injunction, only to decline to grant the relief on grounds of sensitivity to the feelings of a foreign court, are very hard to find. Caution is said to be required, but it is not always conspicuous by its presence.

5.96  The question of principle is whether it is ever justifiable for the English court to interfere or to ‘not interfere’ in this way; and if it is, to identify the grounds for the making of an order designed to intrude into the otherwise unimpeded conduct of procedural and judicial business in a foreign jurisdiction. The usual target, in relation to which the order is made, will be the institution of proceedings before a foreign court, but may also be other procedural steps associated with litigation, such as the invocation of pre-trial measures for the obtaining of documents or witness testimony.94 In short, the question is whether the perception that there is, as a matter of private law, a wrong which ought to be restrained is sufficient to overcome the sense that, as a matter of comity and mutual respect for sovereignty, there should be no interference with a foreign court’s control of its own proceedings. Conceptually, of course, there is no problem: even if it were to be held that an English court has no jurisdiction to rule on whether a foreign court has jurisdiction, this being a matter for the exclusive determination of the foreign court, it does have jurisdiction to adjudicate a private law, bilateral relationship between the parties in the nature of a contract or an equity.95 The question is whether this view of the matter is sufficient to allow the English court to act; and there is no clear and convincing answer to it.(p. 394)

e.  The law

5.97  In order to elaborate the detail of the law on anti-suit injunctions, it is necessary to address a number of points. These are: (i) injunctions and proceedings before the courts of Member States; (ii) personal jurisdiction over the respondent; (iii) relief based on the commission of a private law wrong; (iv) relief based on the commission of a public law wrong; and (v) ancillary matters.

i.  Proceedings before the courts of another Member State

5.98  An English court has no power to make an order in the nature of an injunction to restrain a party over whom it has personal jurisdiction from bringing proceedings in a civil or commercial matter which falls within the scope of the Regulation before the courts of another Member State.96 The proposition is broad and general; it allows no exceptions, or at least no exception for which the European Court has made any provision. It is irrelevant that the English court was first seised, or that the foreign court should have concluded that it has no jurisdiction, or that the foreign court may have been misled by the respondent into believing that there was no lis alibi pendens,97 or that the English court is seised of a matter of arbitration which itself falls outside the Regulation and proposes to make the order within the context of the parties’ agreement to proceed in that way.98 Even though there may be no reason to doubt that the English court has jurisdiction over the respondent, the order is one which the court is forbidden to make.

5.99  At one level, and according to the European Court, this follows from the view that the question whether a court in a Member State has jurisdiction to adjudicate is a question for that court, and only for that court, to decide. One may see why: a judge appointed to adjudicate ought to be allowed to discharge the duties of the judicial oath without unasked-for contributions from an English court.99 If the point be made that the subject matter of the application to the English court is not whether the foreign court has jurisdiction, this being something which the English court has no jurisdiction to rule on, but which has no relevance to the application before the English court in any event, so that the point about judicial sovereignty is not engaged, the response is that the injunction which restrains a litigant is a measure having equivalent effect to one which interferes with the foreign court’s power to determine its own jurisdiction, and it is for that reason inadmissible. A further justification sometimes offered, that the mutual obligations of trust and confidence which the courts of the Member States are required to have in the judicial institutions of all other Member States are absolute, is perhaps more of a piety than (p. 395) anything else. But it has been identified as one of the general principles of private international law made by European law,100 and it has to be accepted and observed, particularly when the English and foreign court are both concerned with a civil or commercial matter, even if the civil or commercial matter before the English court is excluded from the material scope of the Brussels I Regulation.

5.100  The prohibition arising from the Brussels I Regulation will equally apply to the Lugano II Convention, as well as those other civil and commercial matters excluded from the Brussels I Regulation but covered by a separate specialist Regulation. But it has no relevance to proceedings before the courts of a non-Member State, in relation to which the question whether the order should be made is a matter for the common law rules of private international law, and to which the special considerations of the Brussels I scheme have no application. However, if the respondent is domiciled in another Member State, jurisdiction will need to be consistent with the Brussels I Regulation.

ii.  Personal jurisdiction over the respondent