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Oxford Law Citator

13 Interim Anti-Suit Injunctions

Thomas Raphael

From: The Anti-Suit Injunction (2nd Edition)

Thomas Raphael QC

Previous Edition (1 ed.)

Content type:: Book content

Product:: Private International Law [PRIL]

Series:: Oxford Private International Law Series

Published in print:: 12 September 2019

ISBN:: 9780198778936

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Subject(s):: Injunctions to restrain proceedings in England and Wales — Interim anti-suit injunctions

(p. 289) 13 Interim Anti-Suit Injunctions

A. Introduction

13.01 Most anti-suit injunctions are sought and granted on an interim basis. The need to anticipate hearings in the other proceedings means that interim relief is frequently a practical necessity;¹ in many cases, the grant of an interim injunction will be decisive.²

13.02 Indeed, anti-suit injunctions can be granted as interim relief only, without corresponding final anti-suit relief.³ And while some interim anti-suit injunctions meaningfully protect matching causes of action for final anti-suit relief, such as a claim for breach of a jurisdiction clause, this is often not the case. Interim alternative forum injunctions based on non-contractual grounds often in reality protect only the distinct underlying claim on the merits, and even if a claim for a final injunction is brought, it may have little material difference to the claim for the interim injunction itself; while a trial of a final injunction is often neither expected nor required. But the anti-suit injunction is not an inherently interim remedy, like a freezing injunction. It can be granted on a final basis⁴ and the factual disputes which need to be determined may include matters which, in principle, need to be resolved at a trial.⁵ This procedural ambiguity (p. 290) corresponds to the juridical uncertainty, discussed earlier in this work, as to whether there is a true underlying substantive cause of action for interim non-contractual anti-suit relief at all, or whether such injunctions are in essence procedural remedies.⁶

13.03 The result is an unusual hybrid⁷ which does not fit neatly into the categories established for standard interim injunctions claimed in support of substantive causes of action, such as an interim injunction to restrain a potential tortious wrong, sought and granted to hold the ring pending trial of a final injunction on the same cause of action. As we shall see, the ambiguous status of the remedy, and its unique procedural role, has caused difficulties in the formulation of the appropriate tests for the grant of interim relief.

13.04 The substantive restrictions imposed by the Brussels–Lugano regime on the grant of anti-suit injunctions (subject to the possible consequences of Brexit) are discussed in Chapter 12. They apply to interim injunctions as much as final injunctions. The following discussion is subject to those restrictions, so long as the Brussels–Lugano regime remains the law.

13.05 The remainder of this chapter will consider, in turn:

• the powers to grant interim anti-suit injunctions;
• procedure and form;
• the principles to be applied to the grant of interim anti-suit injunctions;
• the court’s discretion;
• mandatory interim anti-suit injunctions.

B. Power and Nature

1. The Primary Power: Section 37(1) of the Senior Courts Act 1981

13.06 In ordinary civil litigation in the High Court,⁸ the power under which interim anti-suit injunctions are granted is section 37(1) of the Senior Courts Act 1981,⁹ which provides (p. 291) that the court has the power to grant interim as well as final injunctions if it is ‘just and convenient’ to do so.

13.07 It appears to be unnecessary to view interim anti-suit injunctions as being granted under the ‘inherent jurisdiction’ of the court.¹⁰

13.08 In the contentious decision of The Siskina, it was considered that the power to grant an interim injunction under section 37(1) was confined to the protection or assertion of some underlying legal or equitable right.¹¹ Since the existence of a distinct legal or equitable right underlying non-contractual anti-suit injunctions is contestable,¹² there was a theoretical tension between the interim relief aspect of The Siskina and the anti-suit injunction. However, the courts finessed this problem by treating interim and final anti-suit injunctions as permissible either under a sui generis exception to the requirement of a legal or equitable right, or on the basis that injunctions can additionally be granted under section 37(1) if the respondent’s conduct is ‘unconscionable’,¹³ which could be viewed as covering all cases where non-contractual anti-suit injunctions are granted. An alternative route round The Siskina would have been to view the interim anti-suit injunction as granted in support of the underlying cause of action in the litigation on the merits between the parties.¹⁴ Further, (p. 292) in any event, the restrictive interim relief doctrine of The Siskina has been under persistent attack,¹⁵ and may well now have disappeared as an absolute restriction in the light of Fourie v Le Roux.¹⁶ In the circumstances, The Siskina is not a relevant constraint on the grant of interim anti-suit injunctions. Interim anti-suit injunctions can therefore be granted in alternative forum cases, in the context of existing proceedings on the merits, even without a final claim for an anti-suit injunction.¹⁷ However, where free-standing single forum injunctions are sought, it will probably be procedurally appropriate for the interim anti-suit injunction to be brought in the context of a final claim form for a final anti-suit injunction, as otherwise there will be no originating process.¹⁸

13.09 The breadth of the power to grant an interim injunction where it is ‘just and convenient’ to do so does not create an untrammelled discretion. The power must be exercised in accordance with principle, and thus will be governed by the tests for the grant of anti-suit injunctions developed in the authorities.¹⁹

2. Powers to Grant Injunctions in Support of Arbitrations

13.10 Section 44 of the Arbitration Act 1996 gives power to grant ‘an interim injunction’ ‘for the purposes of and in relation to arbitral proceedings’. Section 44(3) and 44(4) allow injunctions only to be granted either in cases of ‘urgency’ for the purpose of preserving ‘evidence or assets’ or with the consent of the tribunal or the agreement of the other side. Section 44(5) provides that the court shall only act if the arbitral tribunal has no power or is unable for the time being to act effectively.

(p. 293) 13.11 It used to be thought that interim anti-suit injunctions in support of arbitrations could also be granted under section 44, and it was even occasionally envisaged that section 44 might be the exclusive basis for the grant of anti-suit injunctions in support of arbitration. This would have created difficulties, as the conditions of section 44 if applied unsympathetically would create inappropriate procedural restrictions.²⁰

13.12 But in AES Ust-Kamenogorsk the Supreme Court held that section 44 did not cover such anti-suit injunctions at all, as they were not ‘for the purposes of’ or ‘in relation to’ arbitration proceedings but instead sought to enforce the negative obligation in the arbitration agreement not to litigate elsewhere.²¹ Consequently, interim anti-suit injunctions in support of arbitration are granted in ordinary civil litigation in the High Court under section 37(1) of the Senior Courts Act 1981. It seems the Supreme Court’s reasoning also means that section 44 has ‘no bearing’ on such injunctions, so the procedural constraints in section 44 should not apply, even by analogy, and do not limit the discretion of the court under section 37(1).²² At the most, the issues which the conditions of section 44 highlight may be paid (p. 294) regard, to the extent relevant, in a loose, flexible, and non-restrictive manner, and ignoring aspects that are inappropriate, such as the reference to ‘assets’ in section 44(3).

13.13 As Lord Mance made clear, the court’s power to grant anti-suit injunctions in support of arbitration must be exercised ‘sensitively and, in particular, with due regard for the scheme and terms of the 1996 Act when any arbitration is on foot or proposed’, which means ‘having due regard for the role of the arbitrators and the forum in which the parties have agreed to determine their dispute’.²³ But this does not mean including the literal restrictions of section 44 by the back door.²⁴

13.14 The case law suggests that this sensitivity to the scheme of the 1996 Act and the role of the arbitrators will not discourage the grant of injunctions in appropriate cases. In Nori, Males J explained that the fact that anti-suit relief was available from the arbitrators was not a sufficient reason for the court not to grant it, nor a reason to limit any interim injunction in time so that it lasted only until the Tribunal could consider whether to grant equivalent relief.²⁵

13.15 In practice the section 44 factors have not in general been significant factors against the grant of injunctions. In most cases they are not considered at all,²⁶ and even where considered they are approached liberally and flexibly. Thus:

(1) The absence of the Tribunal’s consent is not ordinarily treated as a strong factor against an injunction, and there is no obligation to seek consent.²⁷
(p. 295) (2) Urgency is interpreted flexibly; and often no specific urgency is required. Indeed, it has been viewed as sufficient for urgency (if applicable), that without an injunction foreign proceedings in breach of the arbitration clause will continue.²⁸
(3) With respect to section 44(5), the courts have accepted that, in general, the arbitrators will not be able to act as effectively as the court in relation to anti-suit relief because of the lack of contempt remedies for breach of awards; and because the respondent will generally not even accept the Tribunal’s jurisdiction to make any anti-suit award.²⁹

13.16 The power in section 37(1) permits the grant of interim anti-suit injunctions in support of arbitrations against non-parties to the arbitration clause, in appropriate cases. One example is where a party who is not contractually bound to arbitrate brings proceedings calculated to undermine the agreement to arbitrate or interfere with the arbitration.³⁰

13.17 Section 37(1) also in principle permits the grant of interim anti-suit injunctions to enforce a foreign arbitration clause.³¹ However, as discussed earlier, there are objections of comity and discretion to the grant of anti-suit injunctions in support of foreign arbitrations. For any interim remedy, the natural court to grant protective relief is usually the court of the seat of the arbitration, and there will need to be some special reason why it is appropriate to ask the English court to intervene in support of a foreign arbitration.³² Further, seeking the invasive remedy of an anti-suit injunction in support of a foreign arbitration may pose real problems of comity.³³

3. Arbitrators’ Lack of Power to Grant Interim Injunctions

13.18 It is often accepted that under the Arbitration Act 1996, arbitrators lack the power to grant interim injunctions, unless the parties expressly grant them that power, either by special agreement (which is unlikely) or under the applicable arbitration rules.³⁴

(p. 296) 13.19 However, it is possible for arbitrators to produce similar results to interim injunctions by speedy final partial awards³⁵ granting injunctions in the course of the arbitration, or procedural orders. Their powers, at least under English arbitration law, include the power to grant ‘anti-suit awards’,³⁶ which can be shaped to grant relief which is limited in time.³⁷

4. Section 25(1) of the Civil Jurisdiction and Judgment Act 1982

13.20 Section 25(1) of the Civil Jurisdiction and Judgments Act 1982, as extended by statutory instrument,³⁸ gives power to grant free-standing interim relief in support of foreign proceedings where substantive proceedings³⁹ have been or are to be commenced in any foreign court.⁴⁰ Section 25(2) provides that ‘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’.

13.21 One important feature of this provision is that it has its own tailor-made jurisdictional gateway in CPR Part 6 PD 6B para 3.1(5). In contrast, if the proceedings to be protected are abroad, it may well be difficult in many cases to establish the court’s territorial jurisdiction to hear an application for an interim injunction under section 37(1) of the Senior Courts Act 1981, and the role of section 37(1) in supporting foreign proceedings is in any event less well established and also bedevilled by the legacy of The Siskina.⁴¹

13.22 However, although section 25(1) of the Civil Jurisdiction and Judgments Act could in theory provide a basis for the grant of anti-suit injunctions,⁴² it is unlikely that it will do so frequently if at all in practice, given the concerns based on comity which inhibit the grant of anti-suit relief in support of foreign courts. In Airbus v Patel, the House of Lords held that anti-suit injunctions would only be granted where the English court had ‘sufficient interest’ in the matter; and that where the question was in which of two foreign courts a substantive dispute would be litigated, some special factors would be required to give the English court a sufficient interest.⁴³ The same reasoning may mean that, in the language of section 25(1), it is generally ‘inexpedient’ to grant an interim anti-suit injunction in support of proceedings before a foreign court.

(p. 297) 5. Powers under the Insolvency Act 1986

13.23 Further, injunctions may be granted to restrain proceedings in England under sections 126 and 227 of the Insolvency Act 1986; these powers are exercised on application on an interim basis.⁴⁴ These provisions, however, do not apply to injunctions to restrain foreign proceedings which must be brought under section 37(1) of the Senior Courts Act 1981.⁴⁵ Interim anti-suit injunctions can also, in theory, be granted in support of foreign insolvency proceedings at the request of the foreign court,⁴⁶ but considerations of comity may well be a serious barrier to the making of such injunctions.⁴⁷

6. Powers of the Appellate Courts

13.24 The appellate courts can on appeal grant any relief which the court appealed from could have granted.⁴⁸ In addition, the Court of Appeal,⁴⁹ the Privy Council,⁵⁰ and the Supreme Court,⁵¹ have power to grant an interim injunction to preserve the status quo pending an appeal, as has the High Court. These powers have not yet been exercised to grant anti-suit injunctions on direct application to the appellate court, although there is no obvious reason in principle why they could not be. But in many cases, it will be more appropriate to claim anti-suit relief from the High Court rather than troubling the appellate court directly.

C. Procedure and Form

1. Interim Anti-Suit Injunctions in the Context of Substantive Proceedings

13.25 An interim anti-suit injunction claimed under section 37(1) of the Senior Courts Act 1981 should in general be sought within the framework of pre-existing substantive proceedings (p. 298) brought by claim form,⁵² and should be applied for by application notice under CPR Parts 23 and 25.⁵³

13.26 The underlying proceedings can, but need not be, a claim for a final anti-suit injunction,⁵⁴ which may be commenced in order to provide a springboard for the interim application. Alternatively, the interim anti-suit injunction can be applied for in the context of substantive proceedings on the underlying dispute. Where underlying substantive proceedings have been commenced, an interim anti-suit injunction can be applied for by any party in the substantive action, whether defendant or claimant.⁵⁵

13.27 Where substantive proceedings have been commenced on the underlying dispute on the merits, it is not necessary, as a matter of procedure, for an applicant for interim anti-suit relief also to commence a claim or counterclaim for a final anti-suit injunction,⁵⁶ provided that the purpose of the interim anti-suit injunction sought is to protect the substantive litigation.⁵⁷ Indeed, where substantive proceedings on the merits are already under way in England, it is more common for an anti-suit injunction to be sought by way of application notice only. The case law permits that such an interim injunction can be unlimited in time, provided it is subject to appropriate rights to vary upon a change of circumstances,⁵⁸ and it can extend beyond the trial of the action. In Masri v Consolidated Contractors, the Court of Appeal concluded that an application for an interim injunction brought after the trial, sought to restrain proceedings abroad relitigating the merits as decided in the trial judgment, could be viewed as interim relief brought within the context of the original action.⁵⁹ An injunction of this kind will have many functional resemblances to a final anti-suit injunction, which is illustrative of the hybrid nature of the remedy.

13.28 This doctrine that an anti-suit injunction can be granted without corresponding final relief has, in part, been driven by ulterior motives, as it allows territorial jurisdiction for interim injunctions to protect English litigation to be founded on the court’s ancillary jurisdiction⁶⁰ to grant interim relief in the context of proceedings before it (which has not yet been (p. 299) extended to cover final anti-suit relief⁶¹), and seeks to avoid the need to establish any separate and independent basis of jurisdiction for a claim for a final anti-suit injunction, which could be problematic in non-contractual cases.⁶²

13.29 One question that has not yet been addressed is what would happen if, on such an application for an interim injunction, it became apparent that there were factual issues that could not fairly be resolved at a normal interlocutory hearing. One potential answer would be for directions to be given for their resolution by an ad hoc factual hearing (with cross-examination, or even disclosure, if necessary), within the framework of the interim application, without necessarily requiring a trial of a final injunction. Alternatively, if that approach was viewed as too heterodox, the problem could provide a reason to extend the ancillary jurisdiction to non-contractual final injunctions to protect existing proceedings.⁶³

13.30 In urgent cases,⁶⁴ the application for an interim injunction may be made in advance of the commencement of planned substantive proceedings, which should then be issued without delay.⁶⁵

2. Procedure for Injunctions in Support of Arbitration

13.31 As discussed, interim anti-suit injunctions in support of an arbitration clause or an arbitration can be claimed under section 37(1) of the Senior Courts Act. Section 44 of the Arbitration Act 1996 is no longer available for interim anti-suit injunctions.⁶⁶

13.32 In many cases the interim anti-suit injunction will be sought in the context of, and to match and anticipate, a claim for a final anti-suit injunction in support of the arbitration. If so, the appropriate procedure is to issue substantive proceedings by arbitration claim form⁶⁷ claiming a final anti-suit injunction, and then to claim for interim relief by application notice in the context of the final claim.⁶⁸ If only an interim injunction is sought (for example pending the decision of the arbitrators), it would seem to be necessary to put the interim injunction in the arbitration claim form, although for good measure an application notice seeking the same interim relief may also be deployed as a procedural precaution.

(p. 300) 3. Free-Standing Interim Injunctions

13.33 Applications under section 25(1) of the Civil Jurisdiction and Judgments Act 1982 in support of foreign proceedings are necessarily free-standing. The appropriate procedure is not entirely clear. It seems most likely that a Part 8 claim form should be issued, together with an application notice if necessary, rather than merely a Part 23 application notice. A claim form is required in the Commercial Court.⁶⁹

13.34 It would also be possible, at least in theory, for an interim anti-suit injunction to be claimed under section 37(1) of the Supreme Court Act 1981 by a free-standing application, independent of existing or proposed substantive proceedings in England. An example of this would be if an interim anti-suit injunction were sought to restrain foreign proceedings in one foreign state, in support of proceedings in another foreign state, or in support of a foreign arbitration.⁷⁰

13.35 However, an applicant would face significant barriers to the grant of free-standing interim anti-suit relief under section 37(1) in support of foreign proceedings, because of the general comity constraints which the law imposes on the grant of anti-suit injunctions in support of foreign courts.⁷¹ If such a free-standing application were made, the correct procedure is not entirely clear, with the available options being an application notice under CPR Part 23 and 25.4 or alternatively a Part 8 Claim Form, although the likelihood is that a claim form would be required, as otherwise there would be no originating process.⁷² In particular, where the relief was sought in support of a foreign arbitration it would seem to need to be brought by arbitration claim form pursuant to CPR 62.2.

4. The Undertaking in Damages

13.36 As in the case of any other interim injunction, the court has a discretion to require an applicant for an interim anti-suit injunction to give an undertaking to pay damages to the defendant in case it is subsequently held that the interim injunction should not have been granted.⁷³

(p. 301) D. The Principles to Be Applied to the Grant of Interim Anti-Suit Injunctions

1. The General Position: American Cyanamid Does Not Apply

13.37 The grant of an interim anti-suit injunction will often be decisive. If it is granted until the trial of the merits it may well in effect determine where the substantive dispute is adjudicated,⁷⁴ since after the English trial it may be too late for any foreign trial. Further, when interim anti-suit injunctions are sought in the context of and to protect existing English proceedings, there will often be no claim for or trial of a final anti-suit injunction at all, with the hearing of the interim injunction being the only anti-suit hearing envisaged.⁷⁵ In addition, the grant of even an interim anti-suit injunction raises comity concerns, and can cause hostile reactions from foreign courts.⁷⁶

13.38 These features of anti-suit injunctions mean that, with the exception of anti-suit injunctions sought on a temporary basis to hold the ring pending a further hearing of the injunction, it will generally be inappropriate for anti-suit injunctions to be governed by the standard principles for interim injunctions derived from American Cyanamid v Ethicon.⁷⁷ Those principles are aimed at preserving the status quo until trial so far as possible, are dominated by the ‘balance of convenience’, and only require the applicant to show that there is ‘a serious issue to be tried’ on the merits of his case for a final injunction.

13.39 There is a small number of anti-suit cases in which Cyanamid reasoning has been used for non-temporary interim anti-suit injunctions⁷⁸ but the courts have in general not followed (p. 302) this approach, where the grant of an interim injunction would be determinative of the question of forum: ‘it is not enough for the claimants to show that they have an arguable case that the suit would be unconscionable, and for them then to claim, on the principles in American Cyanamid … an interlocutory injunction until the English action can be tried’.⁷⁹ Even the higher threshold, supported by some cases,⁸⁰ that the applicant for an interim injunction must show a prima facie right to a final anti-suit injunction, is probably insufficient, and does not represent the overall practice of the courts.

13.40 Instead, the case law adopts a higher threshold, although there is some uncertainty as to the right way to formulate this. First, much of the case law on non-contractual interim anti-suit injunctions assesses the grant of an interim anti-suit injunction effectively by reference to the tests used for the grant of final anti-suit injunctions, without reliance on the notion of some level of probability of establishing a right to final anti-suit relief at some later trial of a final injunction, although allowing for the inherent evidential limitations of an interim hearing.⁸¹ This makes particular sense where it is not envisaged that there will be any trial (p. 303) of a final anti-suit injunction. The substantive equivalence of the tests to be applied is illustrated by the court’s willingness to convert an interim application hearing into a final judgment hearing, where it is apparent that further evidence is unlikely to produce a different result.⁸² Second, another approach, which has been adopted in some recent case law, is to require proof of a high probability of success, at some (possibly notional) trial of a final injunction, either of disputed central factual elements, or perhaps of the entitlement to the injunction itself.⁸³ This is fairly clearly the test to be applied in contractual cases to proof of the existence of a binding exclusive jurisdiction clause.⁸⁴ What is uncertain is whether it should be applied more broadly.

2. Showing an Entitlement to the Injunction at the Interim Hearing

13.41 Under the first ‘actually entitled’ approach, the applicant for an interim anti-suit injunction in a non-contractual case, where a final trial of the anti-suit injunction is not envisaged, and/or where the interim injunction is in substance final, and possibly where there is a sufficient risk that the injunction will in effect be determinative of forum, will need to show, to the extent consistent with the inherent evidential limitations of an interim hearing, that the conditions for anti-suit relief are satisfied. Thus, it must be shown, on the material available, that it is in the interests of justice to grant the injunction and, for example (applying the most generally applicable criterion), that the targeted proceedings are vexatious and oppressive, or unconscionable (with the evidential threshold for so doing perhaps being the balance of probabilities).⁸⁵ It should not be sufficient or necessary for the applicant to establish some level of probability of establishing those matters at a later trial of a final anti-suit injunction, because ex hypothesi there will not be any such trial, or not at a meaningful moment. A similar way of putting this is that the court should simply ask itself who has the ‘better case’ on the material available at the point of considering the interim injunction.⁸⁶ There is a significant body of case law in favour of this solution, but the case law is not uniform, and as we shall see, there are a number of recent cases adopting the alternative ‘high probability’ approach.

(p. 304) 13.42 Applying this ‘actually entitled’ approach, where there is some central⁸⁷ dispute of fact⁸⁸ which needs to be resolved in order to assess the appropriateness of interim anti-suit relief, but which cannot satisfactorily be resolved on the face of the witness statements at an interlocutory hearing, a different framework will be necessary, and it may be necessary to consider whether to make a temporary injunction on a short run basis pending a further intervening factual hearing⁸⁹ or trial of a final injunction,⁹⁰ which may need to be accelerated. A lower threshold will be required for such temporary ‘holding-the-ring’ injunctions.

13.43 However, in relation to alternative forum non-contractual injunctions, it is relatively rare for factual disputes to be central to the appropriateness of anti-suit relief.⁹¹ It is usually possible, for example, to assess vexation or oppression on the basis of the essential uncontroversial facts as to the claims made in the foreign proceedings; and the courts take a pragmatic approach to disputes of fact in this context, to make the interim jurisdiction operate sensibly. Contractual injunctions are different, because the question of whether the foreign proceedings are in breach of contract will be often be central and may well involve triable issues of fact.

3. A Test of ‘High Probability’, Outside the Contractual Case?

13.44 The test of ‘high probability’ has been developed in relation to contractual injunctions. As will be discussed further, where the court is asking itself at the interim stage whether it has been shown to a sufficient level that foreign proceedings are in breach of contract, so that the rigorous Angelic Grace principles should apply, there is now a body of case law suggesting that the binding force of the forum clause must be proven at the level of ‘high probability’ that this will be shown to be the case at trial.⁹² There are also some cases where this has slipped into being the test for the grant of the contractual injunction as a whole, although it is uncertain whether this is right.⁹³

13.45 In non-contractual situations, there is now a strand of case law which suggests that, in cases where the grant of the non-contractual interim injunction is likely to be determinative, and perhaps even where there will be no final trial of the injunction, the relevant test is also whether the applicant has shown a ‘high probability’ that a final anti-suit injunction would be granted at the trial thereof.⁹⁴ However, this sort of cross-pollination requires some (p. 305) care.⁹⁵ Any probabilistic analysis could be strange in principle in those non-contractual, alternative forum cases where it is not envisaged that any final injunction will ever be sought or determined at all, or at any meaningful moment. However, it must be acknowledged that the recent cases have shown a tendency to use ‘high probability’, although without close analysis, and in Sabbagh v Khoury, Knowles J (briefly) considered the point and took a different view to that here proposed, concluding that ‘high probability’ would be the right test in principle.⁹⁶

13.46 Where there are real factual disputes affecting the appropriateness of the injunction, and a meaningful final trial of the anti-suit injunction is envisaged—for example together with the trial of the merits—but there is a real risk or likelihood that the grant of an interim injunction may in practice nevertheless have determinative effects as to forum in the meanwhile, a ‘high probability’ test would be less problematic in principle.⁹⁷

13.47 Nevertheless, it is telling that this is not, in general, how the courts have proceeded in non-contractual cases where the interim injunction is likely to be determinative. Instead, the general approach in practice has been to require at the interim stage that the court actually be satisfied, on the material available, that anti-suit relief should be granted.

4. Temporary Injunctions to Hold the Ring

13.48 Where the interim anti-suit injunction is sought only to hold the ring for a shorter period of time pending a further hearing⁹⁸ or trial of the injunction, or where there will be sufficiently early trial of a final anti-suit injunction, so that the grant of an interim injunction will not be practically determinative of the question of forum, reasoning akin to Cyanamid is more appropriate. It may then be appropriate to grant relief on the basis of there being a sufficient probability of success, pending that further hearing or trial. In such a case, a trial of the final injunction may be accelerated.⁹⁹

(p. 306) 13.49 In such a situation, the appropriate level of sufficient probability has not yet been clearly resolved. There are temporary holding-the-ring cases where all that was required is Cyanamid or something similar.¹⁰⁰ There are cases where it was apparent that the interim injunction would not finally resolve the question of forum, but the court proceeded on the basis that a full showing of vexation and oppression would be required.¹⁰¹ It may be that there is no single test for the range of situations, and that the correct test may turn on the circumstances.

13.50 In the current state of the case law we make only some tentative comments. It would seem that always requiring a ‘high probability’ of success would be setting the bar too high. Thus, in a short run situation where a final factual hearing can be listed in short order, and where an injunction to hold the ring will not cause delay to the foreign proceedings that is in effect determinative of forum, a ‘high probability’ of success has not been demanded.¹⁰² Nevertheless, even if the interim anti-suit injunction is not going to be determinative, it will still inevitably pose potential problems of comity, as its interim status does not prevent it interfering indirectly with the foreign court’s jurisdiction. Consequently, it is submitted that the American Cyanamid tests should always require modification, to reflect the special context of anti-suit injunctions, and in particular the importance of comity. Caution will always be appropriate; and Cyanamid mechanically applied as a rubber stamp should not be sufficient.¹⁰³

5. Contractual Injunctions

13.51 Under the principles developed in The Angelic Grace,¹⁰⁴ where the injunction defendant is in breach of contract, an anti-suit injunction should be granted unless there are ‘strong reasons’ not to do so. At the interim stage, this poses the question of what level of proof of a breach of contract is required.

13.52 Where the question of whether the injunction respondent is in breach of contract can be satisfactorily resolved at the interim hearing—for example where there is a straightforward dispute about the construction of the exclusive forum clause—the courts will usually require the injunction applicant actually to convince the court, for the purposes of the interim hearing, that the foreign proceedings were indeed in breach of contract, in order to justify (p. 307) the application of the Angelic Grace principles at the interim stage.¹⁰⁵ If this can be shown, then the interim injunction will be granted unless the injunction respondent can show at the interim hearing that there are ‘strong reasons’ not to do so.¹⁰⁶

13.53 On the other hand, if the question of breach of contract cannot properly be resolved finally in advance of a further factual hearing or trial (for example where the injunction respondent contends that an alleged exclusive forum clause was not in fact agreed, or that it can be ‘impeached’), it will be insufficient for the applicant to show that there is a serious issue to be tried as to the validity of the clause, or that his case is arguable or strongly arguable.¹⁰⁷ Instead, the current approach reflected in most, although not all, of the case law appears to be that to justify the application of the Angelic Grace framework, the applicant will have to show to a ‘high degree of probability’ that there is a binding and applicable exclusive forum clause.¹⁰⁸ If so, then the injunction should be granted unless there are ‘strong reasons’ not to do so.

13.54 However, once the relevant threshold of probability is passed for the establishment of the force of the clause, it is suggested that the court is not then engaged in an exercise of probabilistic prediction of whether at a final trial, ‘strong reasons’ would or would not be held to exist, or whether a final anti-suit injunction would be granted or refused at the court’s discretion. Instead, it is simply engaged in determining whether ‘strong reasons’ exist, and (p. 308) whether the interim injunction should be granted in the court’s discretion, on the material before it at the interim hearing.¹⁰⁹ ‘Strong reasons’ is a matter for the injunction defendant to prove; and asking how discretion would be exercised at trial is less relevant than how discretion should be exercised now.

13.55 It should be acknowledged that in some cases the court appears to have moved from requiring ‘high probability’ of success at trial as a requirement for proof of the force of the forum clause to regarding it as the overall requirement for the contractual injunction.¹¹⁰ But there appears to have been no focus on the difference between the exercises in those cases, and in Ecobank v Tanoh and Wilson v Emmott the Court of Appeal recently restated the test in terms of ‘high probability’ being the requirement for proof of the forum clause.¹¹¹

13.56 Where there is a substantial dispute of fact which means it cannot be shown at the initial interim hearing that there is a ‘high probability’ that the forum clause would be held binding at trial, then the appropriate course may be to grant a temporary injunction to hold the ring pending determination of a speedy trial on the force of the forum clause. In that situation, it appears that it is not necessary to satisfy a test of ‘high probability’, but only a lower threshold. Where that threshold should be set is discussed above.¹¹²

6. ‘Impeachment’—No Separate Test

13.57 Some of the cases, when exploring the correct approach where the injunction defendant seeks to ‘impeach’ an otherwise prima facie binding exclusive forum clause (for example on grounds of misrepresentation), have used the language that, in order to displace the Angelic Grace principles, the injunction respondent will have to produce ‘credible’ evidence to ‘impeach’ the clause.¹¹³ If the respondent’s attempt at impeachment fails, then the Angelic Grace (p. 309) principles will be applied on the basis that the court is sufficiently satisfied that the clause is binding.¹¹⁴ It is suggested that these cases should now be viewed as consistent with, and examples of, the application of the ‘high probability’ test. If there is no ‘credible’ evidence to impeach the clause, then there is a high probability it will be enforced at trial.

13.58 However, it should be borne in mind that the doctrine of severability of the exclusive forum clause means that there are many cases where a challenge to the validity of the substantive contract, even if upheld, does not impeach the validity of the exclusive forum clause, because the parties’ agreement to dispute resolution can be taken to comprise an agreement to resolve such arguments in the contractually agreed forum.¹¹⁵ So in order to displace the application of the Angelic Grace principles at the interim stage, the injunction respondent must produce sufficiently credible evidence to impeach the forum clause itself, and not merely the underlying contract,¹¹⁶ such that the injunction applicant cannot show there is ‘high probability’ that the forum clause will be enforced.

7. Hemain v Hemain

13.59 In the context of family law, a distinct approach had developed from the decision in Hemain v Hemain,¹¹⁷ dealing with the situation where a defendant in divorce proceedings in England has delayed the progress of English proceedings by applying for a stay on jurisdictional grounds, and has in the meanwhile sought to progress duplicative proceedings in relation to the same divorce in a foreign jurisdiction.¹¹⁸ In this type of case, short-term anti-suit injunctions were granted, to ‘hold the ring’ pending the determination of the English stay application. Injunctions of this nature have been formally justified on the basis that the injunction defendant’s conduct in these circumstances was vexatious and oppressive. However, it was apparently assumed that vexation and oppression would follow from the mere fact of duplicative proceedings and the application for a stay in England. This was heterodox: there is nothing inherently vexatious in using the normal procedures of the foreign court; and the mere fact that competing foreign proceedings are likely to be determined first does not make them vexatious or oppressive.¹¹⁹

13.60 In the more recent case law, however, the signs are that the Hemain line of authority is developing in a more orthodox direction. Thus, in T v T,¹²⁰ the normal criteria for anti-suit injunctions were required to be satisfied, and the injunction was refused despite the presence of duplicative proceedings. To the extent that some of the earlier family cases impose (p. 310) lesser requirements, they may be better viewed as an example of a lower threshold being applied to an interim anti-suit injunction where it will have a merely temporary and non-determinative effect.¹²¹ In any event, to the extent that Hemain represents any other principle, it has not been, and will not be, followed outside the Family Division.

13.61 In any event, as the root cause of the problem in these situations is the delay caused by the English stay application, the most appropriate response is probably to use appropriate case management techniques in England to advance the stay hearing, or possibly to dismiss the stay application unless the injunction defendant gives undertakings that he will not advance the foreign proceedings pending the determination of the stay.¹²²

E. The Court’s Discretion

13.62 Any interim anti-suit injunction, like any final anti-suit injunction, will always be a discretionary remedy.¹²³ However, at the interim stage the kind of circumstances which will be of particular relevance to the exercise of the court’s discretion may be different. The exercise of discretion is always fact dependent and we give only some examples here.

13.63 An applicant can usually exercise much greater control over the timing of interim applications compared to final hearings, and consequently, timing is important to the court’s discretion. Thus, interim anti-suit relief may be dismissed if the applicant has delayed unjustifiably.¹²⁴ Conversely, interim anti-suit injunctions have been dismissed on the ground that they had been applied for prematurely, for example where the court has concluded that a stay application should have first been made to the foreign court,¹²⁵ or where the injunction respondent had not yet given a sufficient indication that he would proceed in the foreign court.¹²⁶ Further, since the applicant can always pursue matters to a final hearing, or if appropriate pursue a second subsequent interim application, the benefit of the doubt may be given to the respondent where it is uncertain whether it is yet appropriate to grant an injunction, for example where the facts are not yet sufficiently clear.¹²⁷

13.64 Interim anti-suit injunctions have not been refused on the grounds that damages would be an adequate remedy. The case law has consistently taken the view that, at least in general and perhaps in principle, damages will not be an adequate remedy, because damages cannot compensate for being sued in the wrong place, and because the counterfactual consequences of this occurring are difficult or impossible to predict.¹²⁸ However, in ADM (p. 311) Asia-Pacific, Phillips J rejected an injunction on the grounds that the applicant had delayed in seeking it and had for some considerable time taken the approach of preferring to resist the foreign litigation and claim the costs in damages.¹²⁹

F. Mandatory Interim Injunctions

13.65 The traditional form of an interim anti-suit injunction is prohibitory, as the respondent is required not to take any further steps to pursue the targeted proceedings until further order. However, interim anti-suit injunctions can also be granted in mandatory form, such as requiring the respondent or defendant to stay, or even discontinue or withdraw, the foreign proceedings.¹³⁰ This is sometimes necessary, not least as there are foreign legal systems in which unless the foreign proceedings are discontinued, they will continue of their own accord.¹³¹

13.66 There is authority to support the proposition that the courts should generally be more reluctant to grant interim mandatory injunctions than interim prohibitory injunctions in other contexts;¹³² since interim mandatory relief is more likely to be irreversible it must genuinely be necessary,¹³³ and it has been said that it generally will require a ‘high degree of assurance’.¹³⁴ However, as Lord Hoffmann explained in National Commercial Bank Jamaica v (p. 312) Olint, the real question is what the practical consequences of the injunction are likely to be. It is wrong simply to say that because an interim injunction is mandatory in form, a ‘high degree of assurance’ is required for it. A ‘high degree of assurance’ would be required if the mandatory injunction would indeed be likely to create irreversible prejudice if wrongly granted, but if this is not the case, it may well not be appropriate to require any markedly higher threshold.¹³⁵

13.67 In a number of first instance cases concerned with anti-suit injunctions, the courts have applied particular caution with regard to mandatory interim anti-suit injunctions, sometimes requiring thresholds such as a ‘high degree of assurance’ or even higher thresholds such as ‘exceptional’.¹³⁶ Interim mandatory anti-suit injunctions requiring discontinuance have been described as involving a ‘direct interference with the procedure of the foreign court’,¹³⁷ and the indirect interference with the foreign court created by a mandatory injunction requiring discontinuance of the foreign proceedings may be seen as particularly striking, while a discontinuance could in some cases be irrevocable. Thus, at the interim stage the appropriate course may be to grant prohibitory relief only.

13.68 Nevertheless, if interim mandatory relief is required to make an interim prohibitory anti-suit injunction work, the courts will grant mandatory relief in appropriate cases, and their approach appears to have become more liberal in practice.¹³⁸ The first instance anti-suit case law mentioning a need for particular caution for interim mandatory relief has not, it seems, yet fully integrated the teachings of Olint, and should not be applied rigidly. As Lord Hoffmann saw in Olint, the issue is not whether the anti-suit injunction is mandatory in form but the actual consequences of granting the specific relief sought.¹³⁹

Footnotes:

¹ See eg Metall und Rohstoff v ACLI Metals (London) [1984] 1 Lloyds Rep 598 (CA) 600. A similar result can sometimes be produced by giving directions for the expeditious hearing of a final injunction: see Tracomin v Sudan Oil Seeds (No 2) [1983] 2 All ER 129, 131.

² Trafigura Beheer v Kookmin Bank [2005] EWHC 2350 [42]; Apple Corps v Apple Computer [1992] RPC 70, 76.

³ See paras 13.08 and 13.27.

⁴ See Ch 3, para 3.32.

⁵ See eg Tracomin v Sudan Oil Seeds (No 2) [1983] 2 All ER 129, 131.

⁶ See Ch 3, section B, ‘A Legal or Equitable Right?’.

⁷ For recognition of the ‘sui generis’ nature of anti-suit injunctions, see Mercedes-Benz v Leiduck [1996] 1 AC 284 (PC) 301D–E.

⁸ In the County Court, interim injunctions can be granted under s 38(1) County Courts Act 1984—although in practice anti-suit injunctions are a game played in the High Court alone.

There are some other miscellaneous statutory powers under which interim injunctions can be granted which could in principle support an interim anti-suit injunction. Thus, in the High Court, once a winding-up petition has been presented, there is a power under s 126 of the Insolvency Act 1986 (the successor of Companies Act 1862, s 85; Companies Act 1908, s 140, Companies Act 1948, s 226, and Companies Act 1948, s 521) to restrain proceedings before the English courts, and courts in other parts of the UK: In re International Pulp and Paper (1876) 3 Ch D 594 (rather confused); Re Dynamics Corp of America [1973] 1 WLR 63. However, this power does not apply to proceedings in foreign courts outside the UK: Re Oriental Inland Steam (1874) 9 Ch App 557 (CA); In re Belfast Shipowners [1894] 1 IR 321, 332 (note contra at first instance on this point: 327–28); Re Vocalion (Foreign) [1932] 2 Ch 196. In Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [16]–[22], the Court of Appeal thought it was likely (without deciding) that this approach should extend to the analogous statutory provisions in respect of administration of companies. See also Tchenguiz v Grant Thornton UK [2017] 2 BCLC 299 (CA) [69].

⁹ For authority holding that interim anti-suit injunctions are granted under s 37(1), see Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [2], [60]; Turner v Grovit [2002] 1 WLR 107 (HL) [22]; AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2012] 1 WLR 920 (CA) [55], [62], [64], [125], [204], [2013] 1 WLR 1889 (SC) [19]–[20], [41], [48], [57], [60]; and among many others, Nursing & Midwifery Council v Harrold [2015] EWHC 2254 (QB) [27].

For complete historical accuracy, it can be noted that strictly the power in s 37(1) restates and confirms, but does not replace, the inherent powers to grant interim injunctions which the High Court inherits from its pre-Judicature Act forebears. It has often been viewed simplistically as conferring the court’s powers to grant interim injunctions, but as Lord Scott pointed out in Fourie v Le Roux [2007] 1 WLR 320 (HL) [25], s 37(1) of the Senior Courts Act 1981 (like its predecessors, s 24(8) of the Supreme Court of Judicature Act 1873 and s 45(1) of the Supreme Court of Judicature (Consolidation) Act 1925) actually only restates and confirms those powers, since the High Court has inherited all the powers of the courts to grant injunctions which existed before the Judicature Acts 1873–75, by virtue of, in turn, s 16 of the Supreme Court of Judicature Act 1873, s 18 of the Supreme Court of Judicature (Consolidation) Act 1925, and finally Senior Courts Act 1981, s 19. See also Cartier International v British Sky Broadcasting [2015] RPC 7 (Arnold J) [94]–[95], [2017] RPC 3 (CA) [40]–[41] (point not addressed in the Supreme Court, [2018] 1 WLR 3259 [5]).

However, the powers preserved by s 19 of the 1981 Act are no broader than the power contained in s 37(1): Day v Brownrigg (1878) 10 ChD 294, 307; L v K (Freezing Orders: Principles and Safeguards) [2014] Fam 35 [14]; Cartier (Arnold J) at [95] and (CA) at [41]. In the modern case law, it is in reality the power in s 37(1) that is exercised.

In the circumstances, it is most convenient to analyse matters in terms of s 37(1) alone. This was how Lord Scott himself approached the issue in Fourie v Le Roux [26].

¹⁰ In The Eras EIL Actions [1995] 1 Lloyds Rep 64, 72, Potter J accepted that an anti-suit injunction could be granted in the ‘inherent jurisdiction’ of the court. However, this conclusion was reached in order to resolve a procedural and jurisdictional problem, namely whether an interim anti-suit injunction could be applied for by application in the context of an existing action in which no claim for a final anti-suit injunction had been brought, to which Potter J gave a positive answer. As matters stand, however, it seems that the procedural and jurisdictional issues can be resolved by treating the court as having both procedural power and territorial jurisdiction to grant interim anti-suit injunctions ancillary to its jurisdiction over the merits of the underlying substantive action, even if no final claim for an anti-suit injunction is brought: see Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [57]–[59]; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [59]; and paras 13.08 and 13.25–13.27. If so, there appears to be no reason why as a matter of substantive law the interim injunction cannot simply be granted under s 37(1), without needing to have recourse to the ‘inherent jurisdiction’: see Glencore (CA) at [2], [12], [60], treating the comments of Moore Bick J at first instance (at [23]) as turning solely on questions of procedure. See also Ch 3, para 3.33.

¹¹ Siskina v Distos Compania Naviera (The Siskina) [1979] AC 210 (HL) 254E, 256C–F; followed in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping [1981] AC 909 (HL) 979G–H, 992D–E, 994H–995A.

¹² See Ch 3, section C, ‘The Form and Nature of Final Anti-Suit Injunctions’; Ch 4, section E, ‘A Legal or Equitable Right’.

¹³ Castanho v Brown & Root [1981] AC 557 (HL) 573C–E; British Airways Board v Laker Airways [1985] AC 58 (HL) 81, 95; South Carolina Insurance v Assurantie Maatschappij ‘De Zeven Provincien’ [1987] 1 AC 24 (HL) 40C–E; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [32]–[54]. In AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [20] narrower language was used, focusing on unconscionability only, but obiter and without citation of all the relevant case law.

¹⁴ See eg Revenue and Customs Commissioners v Ali [2012] STC 42. This line of justification is, however, more appropriate to alternative forum injunctions than single forum injunctions.

¹⁵ Lord Diplock’s speech in The Siskina provoked considerable concern and criticism for many years: see Castanho v Brown & Root [1981] AC 557 (HL) 573C–E; South Carolina Insurance Co v Assurantie Maatschappij ‘De Zeven Provincien’ [1987] 1 AC 24 (HL) 44–45; Channel Tunnel Group v Balfour Beatty Construction [1993] AC 334 (HL) 342H, 343C, 362–63; and Mercedes Benz v Leiduck [1996] AC 284 (PC), where the majority advice given by Lord Mustill declined to decide the point (298B–G, 304F–G); but Lord Nicholls in the minority suggested that The Siskina was wrong, or no longer applicable, in relation to interim relief (as well as jurisdiction): at 309–12. Lord Nicholls’ views on the interim relief point have now in effect been adopted in Fourie v Le Roux [2007] 1 WLR 320 (HL): see n 16.

¹⁶ Fourie v Le Roux [2007] 1 WLR 320 (HL) [30], followed in Secretary of State for the Environment, Food and Rural Affairs v Meier [2009] 1 WLR 2780 (SC) [97]; Royal Westminster Investments v Varma [2012] EWHC 3439; Revenue and Customs Commissioners v Ali [2012] STC 42 [35]–[38]; and now Cartier International v British Sky Broadcasting [2015] RPC 7 (Arnold J) [94]–[95], [2017] RPC 3 (CA) [40]–[41] (not addressed in Supreme Court, [2018] 1 WLR 3259 [5]). It should however be noted that in some of the subsequent case law, Fourie v Le Roux has not always been cited or applied in this sense, and The Siskina has been treated as having continued significance: see eg Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [67]; Octagon Overseas v Coates [2017] 4 WLR 91 [15]–[22]. See also the obiter comments in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 [20], leaving the point open, but where Fourie appears not to have been cited.

For the effect of the decision in Fourie v Le Roux on the court’s power to grant final injunctions, see Ch 3, paras 3.05–3.06.

¹⁷ Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [59]. See also CPR 25.1(4). This is discussed further at para 13.27.

¹⁸ See Fourie v Le Roux [2007] 1 WLR 320 [32]; Octagon Overseas v Coates [2017] 4 WLR 91 [15]–[22] (in a rather different context). In Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [44], [55], [57], Collins LJ suggested that there would be a need for an underlying right and cause of action, and a final claim by claim form, for a free-standing single forum injunction.

¹⁹ Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [23]; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]; see also in related contexts, the comments in Fourie v Le Roux [2007] 1 WLR 420 (HL) [3], [6], [33], [45], [48] and Tasarruf Mevduati Sigorta Fonu v Merrill Lynch Bank & Trust Co (Cayman) [2012] 1 WLR 1721 (PC) [57].

²⁰ It would be impractical if anti-suit injunctions could not be granted to support arbitration without the consent of the tribunal, as often time does not permit this, or the tribunal will not have been appointed, or it might be functus; and the other side’s agreement is not realistically to be expected.

Consequently, in order to circumvent the barriers posed by s 44(3)–(4), before AES Ust-Kamenogorsk there was authority that suggested that the right to arbitrate under an arbitration clause could be treated as an ‘asset’ for this purpose (Cetelem v Roust Holdings [2005] 1 WLR 3555 [70]; Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230 [21]; Sheffield United FC v West Ham United FC [2009] 1 Lloyds Rep 167 [32]). This would have allowed anti-suit injunctions to be granted under s 44 in cases of urgency without the tribunal’s consent. But the interpretation of ‘assets’ that permitted it was a rather artificial conclusion; Rix LJ viewed the point as ‘unsettled’ in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2012] 1 WLR 920 (CA) [28]; and Lord Mance appeared similarly to find its logic unappealing in Ust-Kamenogorsk [2013] 1 WLR 1889 (SC) [47], which is part of the reason he concluded that s 44 did not apply at all.

Indeed, even if the ‘assets’ problem is interpreted away, or ignored, the restrictions of s 44 would still be inappropriate for interim anti-suit injunctions, even by analogy. Accordingly, even where the s 44 conditions have been thought relevant, they have been interpreted liberally, and they have not in practice been a significant constraint, whether applied directly or by analogy: see para 13.15.

²¹ AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [43]–[48], adopting the same approach as had previously been taken in Sokana Industries v Freyre [1994] 2 Lloyds Rep 57, 65, followed in Industrial Maritime Carriers (Bahamas) v Sinoca International [1996] 2 Lloyds Rep 585, 592. Ust-Kamenogorsk has been applied in Rochester Resources v Lebedev [2014] EWHC 2926 [52]; Southport Success v Tsingshan Holding Group (The Anna Bo) [2015] 2 Lloyds Rep 578.

The decision in Ust-Kamenogorsk overrules a number of previous cases in which interim anti-suit injunctions had been granted under s 44 or where it was held that interim anti-suit injunctions could in principle be granted under s 44 (often as an additional route available alongside s 37 (1)): Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230 [16]–[28]; Niagara Maritime v Tianjin Iron & Steel Group [2011] EWHC 3035 [11]–[12]—an undefended case); BNP Paribas v Russian Machines [2012] 1 Lloyds Rep 61 [38], [45] (where the point was conceded but Blair J thought it had been rightly conceded; the point was not addressed on appeal, Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA)); U&M Mining Zambia v Konkola Copper Mines [2013] 2 Lloyds Rep 218 [24]; and see AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2012] 1 WLR 920 (CA) [101]–105]. Similarly, in West Tankers v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL) [10], Lord Hoffmann thought interim anti-suit injunctions could be granted under both s 37(1) and s 44.

²² AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [43], [48], [58] (departing from [2012] 1 WLR 920 (CA) [42]–[96], per Rix LJ); Southport Success v Tsingshan Holding Group Co Ltd (The Anna Bo) [2015] 2 Lloyds Rep 578 [19]–[25]; Nori Holding v Bank Otkritie Financial Corporation [2018] 2 Lloyds Rep 80 [32]–[42].

However, although in The Anna Bo Phillips J had concluded that the limitations of s 44 did not apply by analogy to anti-suit injunctions under s 37, in his own later decision in Mace (Russia) v Retansel Enterprises [2016] EWHC 1209 [19] the same judge held that ‘regard’ should be had to the limitations of s 44, without referring to his previous decision. In Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [54]–[56], [82] Males J thought that although the s 44 considerations were ‘not necessarily decisive’, they ‘may be taken into account so as to inform the exercise of the court’s discretion’. It is suggested that the neatest reading of the Supreme Court’s decision is that it is not even necessary to pay ‘regard’ to the specific conditions of s 44, and that Southport is the better authority; considerations such as urgency may be separately relevant in principle but can be applied independent of the rather awkward terminology of s 44.

Indeed, in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2012] 1 WLR 920 (CA) [96] Rix LJ took the view that if s 44 was to apply by analogy, only ss 44(5) and 44(6), and not 44(3) and 44(4), could impose relevant constraints. At most, paying regard to the ‘scheme’ of the 1996 Act (as Lord Mance envisaged in Ust-Kamenogorsk at [60]) could involve paying a loose and inspecific regard to s 44 among other aspects of the Act.

²³ AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [60]; Southport Success v Tsingshan Holding Group (The Anna Bo) [2015] 2 Lloyds Rep 578 [25]. This is broadly also the approach of Rix LJ in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2012] 1 WLR 920 (CA) [94], [96], 105].

²⁴ Southport Success v Tsingshan Holding Group (The Anna Bo) [2015] 2 Lloyds Rep 578 [25]. However, cf contra Mace (Russia) v Retansel Enterprises [2016] EWHC 1209 [19], suggesting that ‘regard’ should be paid to the restrictions of s 44. This is discussed in n 22.

²⁵ Nori Holding v Bank Otkritie Financial Corporation [2018] 2 Lloyds Rep 80 [32]–[42].

²⁶ See among many others, XL Insurance v Owens Corning [2000] 2 Lloyds Rep 500, 503–04; Navigation Maritime Bulgare v Rustal Trading (The Ivan Zagubanski) [2002] 1 Lloyds Rep 106; Through Transport Mutual Insurance Association (Eurasia) v New India Assurance [2004] 1 Lloyds Rep 206, [2005] 1 Lloyds Rep 67 (CA).

²⁷ See Mace (Russia) v Retansel Enterprises [2016] EWHC 1209 [19] (consent not sought and this was not thought to be a factor against the injunction); Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [82] (no obligation to seek consent); and AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2010] 2 Lloyds Rep 233 [19]–[20]. Indeed, in Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230 at [29]–[31], the injunction was granted even though the arbitrators had refused consent. There are many cases where the consent of the arbitrators was not sought and this has not been considered to be a factor against the injunction.

In Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [54]–[56], [82], Males J observed that although there was no obligation to seek the Tribunal’s consent, an absence of urgency combined with a lack of consent from the Tribunal might be ‘highly relevant’, although he made clear that there was ‘no obligation’ to seek their consent. That, however, was a case on unusual facts where the issue was whether an injunction should be granted to restrain evidence-gathering proceedings in the US court, where such evidence was to be used in the arbitration. The Tribunal’s views on this might have been particularly pertinent. Males J regarded it as surprising that the Tribunal had not been informed of the injunction.

²⁸ In Southport Success v Tsingshan Holding Group (The Anna Bo) [2015] 2 Lloyds Rep 578 [26], urgency was considered satisfied (if it needed to be considered), even where the injunction had not been sought with any great speed, simply on the basis that it was important to prevent the foreign proceedings continuing in the near future. In Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230 [29]–[30], urgency was not considered relevant and only s 44(5) was applied by analogy under s 37.

²⁹ See Southport Success v Tsingshan Holding Group (The Anna Bo) [2015] 2 Lloyds Rep 578 [27]; Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230 [29]–[31]; AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [40]–[41], [47]. See also the robust approach taken in Nori Holding v Bank Otkritie Financial Corporation [2018] 2 Lloyds Rep 80 [32]–[42].

³⁰ See eg Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA) [46]–[58] and Mace (Russia) v Retansel Enterprises [2016] EWHC 1209.

³¹ Channel Tunnel Group v Balfour Beatty Construction [1993] AC 334 (HL) 360–66.

³² See Econet Wireless v Vee Networks [2006] 2 Lloyds Rep 423 [19]. See also U&M Mining Zambia v Konkola Copper Mines [2013] 2 Lloyds Rep 218 [63], concluding that where the seat of the arbitration is abroad, the court will need very good reason to exercise a jurisdiction under s 44 of the 1996 Act.

³³ See Ch 7, section G, ‘Injunctions in Support of a Foreign Forum’. However, the courts of Bermuda and the Eastern Caribbean have granted anti-suit injunctions to enforce foreign arbitration clauses. See Finecroft v Lamane Trading (Eastern Caribbean SC, 6 January 2006); IPOC International Growth Fund v OAO ‘CT-Mobile’ (Bermuda CA, 23 March 2007).

³⁴ Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230 [20], [26] (relying, in particular, on the terms of Arbitration Act 1996, s 39); Nori Holding v Bank Otkritie Financial Corporation [2018] 2 Lloyds Rep 80 [35].

³⁵ Under Arbitration Act 1996, s 47.

³⁶ See Ch 7, paras 7.51–7.55.

³⁷ See Kastner v Jason [2004] 2 Lloyds Rep 397 [27]: ‘the criterion for jurisdiction is that the relief is granted by the final award, not the final or interim character of the relief’.

³⁸ By Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997, SI 1997 No 302.

³⁹ Section 25(1) only applies to give the English power to grant interim relief in support of substantive final foreign proceedings, and not in support of interim proceedings before foreign courts: ETI Euro Telecom International v Republic of Bolivia [2009] 1 WLR 665 (CA) [70]–[78].

⁴⁰ The s 25(1) power does not apply to interim relief in support of a foreign arbitration: ETI Euro Telecom International v Republic of Bolivia [2009] 1 WLR 665 (CA) [79]–[82].

⁴¹ See the discussion of The Siskina in Ch 3, paras 3.04 and 3.14.

⁴² The court can grant remedies under s 25(1) which the supported court could not grant: Credit Suisse Fides Trust v Cuoghi [1999] QB 818 (CA), so the inability of the supported court to grant anti-suit injunctions (as may well be the case) should not in itself be an absolute barrier.

⁴³ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138G–H, 139G. However, for examples of anti-suit injunctions being granted in support of foreign arbitration proceedings, see Finecroft v Lamane Trading (Eastern Caribbean SC, 6 January 2006); IPOC International Growth Fund Ltd v OAO ‘CT-Mobile’ (Bermuda CA, 23 March 2007). See generally Ch 4, para 4.83 and Ch 7, section G, ‘Injunctions in Support of a Foreign Forum’.

⁴⁴ Section 126(1) expressly grants a power to ‘apply’ rather than ‘claim’. See further Ch 3, para 3.06, n 26.

⁴⁵ Re Oriental Inland Steam (1874) 9 Ch App 557 (CA); In re Belfast Shipowners [1894] 1 IR 321, 332 (note contra at first instance on this point: 327–28); Re Vocalion (Foreign) [1932] 2 Ch 196; Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [16]–[22] (in respect of the parallel provisions relating to the administration of companies); Tchenguiz v Grant Thornton UK [2018] 2 WLR 834 (CA) [69].

⁴⁶ See eg Hughes v Hannover [1997] 1 BCLC 497 (CA) 500.

⁴⁷ An injunction was refused in Hughes v Hannover [1997] 1 BCLC 497 (CA) 520, 522–24, on the basis of reasoning which implicitly reflected concerns about comity; further, since Airbus Industrie v Patel [1999] 1 AC 119 (HL), the court’s hesitation would be accentuated. See Ch 4, para 4.83.

⁴⁸ Senior Courts Act 1981, s 15(1) (in relation to the Court of Appeal); and Constitutional Reform Act 2005, ss 40–41 (in relation to the Supreme Court); see further Ch 3, para 3.03, n 2.

⁴⁹ Polini v Gray (1879) 12 Ch D 438 (CA) (injunction granted pending appeal to the House of Lords); Novartis v Hospira UK [2014] 1 WLR 1264 (CA). It appears that the Court of Appeal’s power to grant such injunctions arises under s 37(1) of the Senior Courts Act 1981, which applies to the Court of Appeal under s 15 of that Act: Ketchum International v Group Public Relations Holdings [1997] 1 WLR 4 (CA) 8, 11; Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize [2003] 1 WLR 2839 (PC) [32].

⁵⁰ The Privy Council’s power is an inherent power, derived by implication from the Judicial Committee Acts of 1833 and 1843: Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize [2003] 1 WLR 2839 (PC) [33]–[34]; Cukurova Finance International v Alfa Telecom Turkey [2013] UKPC 25 [17].

⁵¹ Under s 40 of the Constitutional Reform Act 2005; see also Grobbelaar v News Group Newspapers [2002] 1 WLR 3024 (HL) [25], [37], [62].

⁵² CPR 23.2. See Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [58].

⁵³ CPR 25.1(1)(a), 25.3, 23.1, 23.3. This is what was done eg in Donohue v Armco [1999] 2 Lloyds Rep 649 [18]; and Youell v Kara Mara Shipping [2000] 2 Lloyds Rep 102 [28]–[31]. The possibility of free-standing interim anti-suit injunctions is discussed at paras 13.33–13.35.

⁵⁴ See eg Midland Bank v Laker Airways [1986] QB 689 (CA) 694H–695C; Donohue v Armco [1999] 2 Lloyds Rep 649 [18].

⁵⁵ However, without the permission of the court, a defendant may not apply for an interim injunction before he has filed an acknowledgment of service or a defence: CPR 25.2(2)(c). For an example of an anti-suit injunction applied for by a defendant, see Castanho v Brown & Root (UK) Ltd [1981] AC 557 (HL).

⁵⁶ This proposition is given general support by CPR 25.1(4), and it is clearly established in relation to anti-suit injunctions: Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [59]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [58]. There are many examples of this: see The Eras EIL Actions [1995] 1 Lloyds Rep 64, 73 (concerning third-party defendants); CNA Insurance Co Ltd v Office Depot [2005] Lloyds Rep IR 658. The contrary was suggested in Sokana Industries v Freyre [1994] 2 Lloyds Rep 57, 66, but that is wrong.

⁵⁷ In contrast, if the anti-suit injunction was unconnected to the substantive litigation between the claimant and the defendant, then the principle in Carter v Fey [1894] 2 Ch 541 (CA) 543, 545 would probably apply, and the applicant would have to bring a separate claim for anti-suit relief.

⁵⁸ The Eras Eil Actions [1995] 1 Lloyds Rep 65, 74.

⁵⁹ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [4]–[5], [58], [66]. The Court of Appeal held that such an injunction was, however, necessarily subject to an implied liberty to apply: at [66], [97]. See also Zeeland Navigation v Banque Worms (14 December 1995).

⁶⁰ See Ch 17, paras 17.57–17.63; Ch 18, paras 18.90–18.92.

⁶¹ As to whether the ancillary jurisdiction could and should apply to final relief as well, see Ch 16, para 16.23; Ch 17, paras 17.08–17.09.

⁶² See Ch 17, section B, ‘Jurisdiction over Final Anti-Suit Injunctions under the Brussels–Lugano Regime’; Ch 18, section E, ‘Can the Common Law Jurisdictional Gateways Apply?’.

⁶³ See Ch 16, para 16.23; Ch 17, paras 17.08–17.09.

⁶⁴ CPR 25.2.

⁶⁵ Where it grants an interim remedy before a claim has been commenced, the court should give directions requiring a claim to be commenced: see CPR 25.2(3), and CPR PD 25A, para 5.1. The interim injunction may be discharged if substantive proceedings are not commenced in good time (even if there is no express order to do so, and a fortiori if there is): see Siporex Trade v Comdel Commodities [1986] 2 Lloyds Rep 428, 436.

⁶⁶ See para 13.12.

⁶⁷ For the appropriateness of using an arbitration claim form, see Ch 3, para 3.35.

⁶⁸ This is what was done in eg Navigation Maritime Bulgare v Rustal Trading (The Ivan Zagubanski) [2002] 1 Lloyds Rep 106 [2], [26]–[27], [49]; in BNP Paribas v Russian Machines [2012] 1 Lloyds Rep 61 [2], [11], [26]–[27]; and also in Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2010] 2 Lloyds Rep 493 [1], [11]–[12], [2012] 1 WLR 920 (CA) [29], [32].

⁶⁹ Before the implementation of the CPR, applications under s 25(1) of the Civil Jurisdiction and Judgments Act 1982 had to be made by originating summons: Rules of the Supreme Court (RSC) Order 29, r 8A. Initially, the CPR also required, by reference back to the RSC procedure, that such applications by brought by Part 8 Claim Form: see the old CPR Part 8 Practice Direction B, paras A.1(3), A.2(1), A.3. However, under the current CPR Part 8 Practice Direction A, the use of the Part 8 Claim Form is not specifically required. Further, the wording of CPR 25.4 is capable of being read to suggest that an application in support of foreign proceedings should be brought by application notice pursuant to CPR 23. But the Commercial Court Guide requires a claim form: F15.15. The White Book also suggests that a claim form is also required at least for injunctions: paras 6HJ.13 and 25.4.2. In Ras Al-Khaimah Investment Authority v Bestfort Development [2015] EWHC 1955 [7]–[8], the court concluded that a claim form was the appropriate procedural mechanism, bearing in mind the provisions of CPR 25.2(3).

⁷⁰ Channel Tunnel Group v Balfour Beatty Construction [1993] AC 334 (HL) 365H; Fourie v Le Roux [2007] 1 WLR 420 (HL) [25]–[30]; see also Department of Social Security v Butler [1995] 1 WLR 1528 (CA) 1534H–1535A (somewhat ahead of its time). This power has most relevance in relation to the support of foreign arbitration proceedings, because although the Civil Jurisdiction and Judgments Act 1982 s 25(1) gives an express power to grant interim relief in support of foreign court proceedings, it does not create a parallel power to grant interim relief in support of foreign arbitration proceedings: ETI Euro Telecom International v Republic of Bolivia [2009] 1 WLR 665 (CA) [79]–[82].

⁷¹ See Ch 4, para 4.83; Ch 7, section G, ‘Injunctions in Support of a Foreign Forum’. It is also unlikely that anti-suit injunctions to support foreign proceedings would be granted under s 25(1): see paras 13.20–13.22.

⁷² See by analogy the position in respect of s 25 of the Civil Jurisdiction and Judgments Act 1982: see para 13.33.

⁷³ CPR PD 25 para 5.1, which applies to all interim injunctions.

⁷⁴ Apple Corps v Apple Computer [1992] RPC 70, 76; Trafigura Beheer v Kookmin Bank Co [2005] EWHC 2350 [42]; CSR v Cigna Insurance Australia (1997) 146 ALR 402 (HC Aus) 437:

Where, however, the issue is whether a matter should be litigated in the courts of one country or another and application is made for an interlocutory anti-suit injunction by reference to considerations which may fall for determination in proceedings in that other country, the injunction, if granted, operates with the consequence that the matter in question is heard and determined in the court granting the injunction … Thus, an interlocutory anti-suit injunction is effectively a final determination as to where the matter or some particular aspect of it is litigated.

⁷⁵ See Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [48]–[53].

⁷⁶ As happened in British Airways Board v Laker Airways [1984] QB 142 (CA) 185.

⁷⁷ American Cyanamid v Ethicon [1975] AC 396 (HL).

⁷⁸ There are cases where Cyanamid has been applied to anti-suits that would be effectively determinative of the question of forum, but where it does not appear to have been argued that any other test should be applied: Marazura Navegacion v Oceanus Mutual Underwriting Association (Bermuda) [1977] 1 Lloyds Rep 283, 286–88; Deutz v General Electric (Thomas J, 14 April 2000). Recently, in Petter v EMC [2015] EWHC 1498 (QB) [59]–[71], Cooke J assumed that American Cyanamid would be the test—it appears without argument to the contrary—but then went on to refuse the injunction on what are in effect non-Cyanamid grounds.

In another strand of the case law, Cyanamid has been applied only where the judges concluded that the grant of the interim injunction would not be determinative of the question of forum: Apple Corps v Apple Computer [1992] RPC 70, 76–77 (although Hoffmann J required ‘caution’); and see Golden Ocean Group v Humpuss Intermoda Transportasi TBK (The Barito) [2013] 2 Lloyds Rep 421 [73] (where Burton J thought the injunction would only cause delay to the foreign proceedings; it is not clear whether it was argued that any different test should be applied). See also the obiter statements in Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA) [83]; and Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [48].

There were passing references to ‘balance of convenience’ reasoning in South Carolina Insurance v Assurantie Maatschappij ‘De Zeven Provincien’ [1986] 1 QB 348 (CA) 359; but there was no echo of this in the House of Lords: [1987] 1 AC 24 (HL). In Marc Rich v Societa Italiana Impianti (The Atlantic Emperor) (No 2) (Hobhouse J, 11 November 1991), Hobhouse J thought that American Cyanamid ‘provides the starting point for any application such as the present’, but noted that ‘the Court must also, even on an application for an interim injunction, have regard to the character of the injunction sought’; this led him to reintroduce elements of the threshold conditions for granting anti-suit injunctions as criteria, which meant that, in the end, his reasoning process was far from a simple Cyanamid approach. On appeal, the Court of Appeal described Hobhouse J as having applied American Cyanamid, and generally approved his reasoning, but without directly considering whether American Cyanamid was appropriate: [1992] 1 Lloyds Rep 624 (CA) 628, 633–34.

See also, in a domestic case, Essex Electric (Pte) v IPC Computers (UK) [1991] FSR 690.

⁷⁹ Midland Bank v Laker Airways Ltd [1986] QB 689 (CA) 707C–E.

See also Donohue v Armco [1999] 2 Lloyds Rep 649 [33]; Bankers Trust v Pt Mayora Indah (Colman J, 20 January 1999); Bankers Trust v PT Jakarta International Hotels and Development (Cresswell J, 12 March 1999); Sheffield United FC v West Ham United FC [2009] 1 Lloyds Rep 167 [10]; Dreymoor Fertilisers Overseas v Eurochem Trading Gmbh [2018] EWHC 2267 [48].

In a domestic context, see Bryanston Finance v de Vries (No 2) [1976] Ch 63 (CA) 76–77, 79–81.

⁸⁰ Midland Bank v Laker Airways [1986] QB 689 (CA) 707C–E; Sheffield United FC v West Ham United FC [2009] 1 Lloyds Rep 167 [10]. Similarly, in Metall und Rohstoff v ACLI Metals (London) [1984] 1 Lloyds Rep 598 (CA) 613 and Pathe Screen Entertainment v Handmade Films (Distributors) (Hobhouse J, 11 July 1989), it was suggested that a ‘higher standard of proof’ might be required for an anti-suit injunction than on an application for a stay.

⁸¹ There are many examples of this in the case law, although in general the cases operate simply by requiring that the juridical conditions of anti-suit relief be satisfied, without referring to any lower probabilistic threshold, rather than expressly grappling with what should be the test and concluding that a probabilistic approach is not appropriate.

See with particular clarity: National Westminster Bank v Utrecht-America Finance [2001] 3 All ER 733 (CA) [28]–[29] (not itself an interim injunction); Bloch v Bloch [2003] 1 FLR 1 [47], [54]; Trafigura Beheer v Kookmin Bank [2005] EWHC 2350 [42]. See the obiter discussion at Sheffield United FC v West Ham United FC [2009] 1 Lloyds Rep 167 [9]–[11], [21] (quoting the corresponding passage in the first edition of this work); as well as Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267, [48]–[53].

Turning to lead decisions on anti-suit injunctions, this approach is consistent with and arguably implicit in the reasoning in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC); Barclays Bank v Homan [1993] BCLC 680 (CA); Turner v Grovit [2000] QB 345 (CA) 357–62; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19]–[20] (no suggestion of any lower threshold for interim injunctions); Glencore International v Metro Trading International [2002] CLC 1090, Moore-Bick J [24]–[43] (upheld on appeal, (CA) [65]–[70]); Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank BA [2003] EWHC 2913 (upheld, [2004] 1 Lloyds Rep 471 (CA)); Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 54 [29], [2005] 2 Lloyds Rep 359 (CA) [43]–[45].

See also, for other examples of cases where this sort of approach has been taken, Castanho v Brown & Root [1980] 1 WLR 833 (CA) 836, 856, [1981] AC 557 (HL) 572–77; EI Du Pont de Nemours v IC Agnew (No 2) [1988] 2 Lloyds Rep 240 (CA) 244–45; Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); The Eras EIL Actions [1995] 1 Lloyds Rep 64, 66–67, 79, 86 (where both interim and final injunctions were sought and no distinction was drawn between the tests); Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104 (where, significantly, it appears that the interim injunction was not determinative, as the final injunction hearing proceeded in Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91); Ascot Commodities v Northern Pacific Shipping (The Irini A) [1999] 1 Lloyds Rep 196; Commercial Union Assurance v SIMAT Helliesen & Eichner [2001] Lloyds Rep IR 172, 175, 177; Al-Bassam v Al-Bassam [2004] EWCA Civ 857, [32], [47]–[48].

For recent examples, see Dawnus Sierra Leone v Timis Mining Corporation [2016] EWHC 236 (TCC); Wilson v Michael Emmott [2018] 1 Lloyds Rep 299 (CA) [36]–[37], [58] (contrasting to [38]–[39]).

See further n 84.

⁸² See eg Navigation Maritime Bulgare v Rustal Trading (The Ivan Zagubanski) [2002] 1 Lloyds Rep 106, [122] (where Aikens J declined to make an order on a final basis as it was possible that further evidence might arise).

⁸³ See paras 13.44–13.47 below.

⁸⁴ See paras 13.51–13.54 below.

⁸⁵ The examples of this approach being used in the case law are addressed at n 80. For cases which grapple with the point more expressly, and support the analysis in the text, see Trafigura Beheer v Kookmin Bank [2005] EWHC 2350, [42]; and the obiter comments in Sheffield United FC v West Ham United FC [2009] 1 Lloyds Rep 167 [9]–[11], [21] (quoting the corresponding passage in the first edition of this work). In Apple Corps v Apple Computer [1992] RPC 70, 77, Hoffmann J appears to have accepted that this would be the right approach in a case where Cyanamid could not apply, because the grant of the injunction would be determinative. Further, this appears to be what Stephenson LJ had in mind, in relation to injunctions to restrain winding-up proceedings, in Bryanston Finance Ltd v de Vries (No 2) [1976] Ch 63, 79–80; and see also the judgment of Sir John Pennycuick at 80–81 (however, Buckley LJ appears to have adopted a lower ‘prima facie’ test: at 76–77). See also British Caribbean Bank v Belize [2013] CCJ 4.

In Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [48]–[53], Males J adopted a similar approach for an anti-suit injunction which although interim in form was ‘essentially final’, and where it was not anticipated that there would be any further hearing of a final injunction. However, he envisaged (obiter) that ‘high probability’ would be the appropriate test to employ where the order for interim relief was ‘likely in practice to be determinative’.

⁸⁶ Magellan Spirit APS v Vitol (The Magellan Spirit) [2016] 2 Lloyds Rep 1 [9]–[10].

⁸⁷ Where appropriate, non-central points of fact which cannot be resolved at the interim stage can be left hanging: see eg Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1 [201].

⁸⁸ Or perhaps even a difficult or time-consuming collateral matter of law which cannot be sensibly resolved at the interim stage: see Apple Corps v Apple Computer [1992] RPC 70, 79.

⁸⁹ See para 13.29.

⁹⁰ See eg Midgulf International v Group Chimique Tunisienne [2009] 2 Lloyds Rep 411 [36]–[43], [63] (a temporary injunction pending a speedy trial of whether the contract was agreed); and CNA Insurance v Office Depot International (UK) [2005] Lloyds Rep IR 658 [20] (a temporary holding injunction pending a further interim hearing).

⁹¹ In a number of important cases, the courts have not been hesitant in making robust findings of fact at interlocutory hearings for interim anti-suit injunctions: eg Turner v Grovit [2000] QB 345 (CA) 362C–D.

⁹² See paras 13.51–13.54.

⁹³ See para 13.55.

⁹⁴ The most express conclusion to this effect is in Sabbagh v Khoury [2018] EWHC 1330 [21], where Knowles J concluded that ‘high probability’ was right in principle, although the injunction would in effect be final and no further hearing was envisaged. But in fact, he granted the injunction on the basis that he was convinced that the foreign proceedings were vexatious (at [44]).

The Court of Appeal proceeded on the basis of such a test in Joint Stock Asset Management Company Ingosstrakh Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA) [83]–[84], but the only alternatives put to the Court appear to have been Cyanamid or ‘high probability’, and they did not need to decide the issue. The use of ‘high probability’ was also common ground in Mace (Russia) v Retansel Enterprises [2016] EWHC 1209, [11] and Team Y&R Holdings Hong Kong Limited v Ghossoub [2017] EWHC 2401 [41]; and was used by the court in the undefended contractual decision in Qingdao Huiquan Shipping v Shanghai Dong He Xin Industry Group [2018] EWHC 3009 [27].

In Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [48]–[53], Males J held that the right approach where the injunction was ‘essentially final’ would be to apply the tests for final injunctions, but he envisaged obiter that ‘high probability’ would apply to interim injunctions that were ‘likely to be determinative’.

⁹⁵ In Wilson v Michael Emmott [2018] 1 Lloyds Rep 299 (CA) [36]–[39], [58] the Court of Appeal appears to have regarded the ‘high probability’ concept as applicable only to the proof of an exclusive forum clause in contractual injunction cases; they did not apply ‘high probability’ to vexation and oppression. Similarly, in Stonehouse v Jones [2012] EWHC 1089 [30], Hamblen J did not necessarily accept that ‘high probability’ was relevant to proof of vexation or oppression.

⁹⁶ Sabbagh v Khoury [2018] EWHC 1330 [21]; the point is also touched on in the reasoning of the Court of Appeal in Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA) [90], although it seems without considering the alternative ‘actually entitled’ approach.

⁹⁷ This may be what Males J had in mind in Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [48]–[53].

⁹⁸ See eg where an interim anti-suit injunction is sought for a short period pending a fuller interim hearing inter partes at which the matters can be properly debated: see eg CNA Insurance v Office Depot International (UK) [2005] Lloyds Rep IR 658 [20].

⁹⁹ See eg Youell v Kara Mara Shipping [2000] 2 Lloyds Rep 102, 122, 126.

¹⁰⁰ Apple Corps v Apple Computer [1992] RPC 70, 76–77; ICBCL Financial Leasing v CG Commercial Finance [2014] EWHC 3156; Golden Ocean Group v Humpuss Intermoda Transportasi TBK (The Barito) [2013] 2 Lloyds Rep 421 [73]–[74]. This may also be the explanation of Youell v Kara Mara Shipping [2000] 2 Lloyds Rep 102, 122, 126.

¹⁰¹ See eg Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104 (interim injunction hearing) and Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91 (final injunction hearing where the same tests were applied); Bloch v Bloch [2003] 1 FLR 1 [88]–[90].

¹⁰² See recently Golden Ocean Group v Humpuss Intermoda Transportasi TBK (The Barito) [2013] 2 Lloyds Rep 421 [73]–[74], and also Midgulf International v Group Chimique Tunisienne [2009] 2 Lloyds Rep 411 [36]–[43], [63], where Teare J would have refused an anti-suit injunction on the grounds that a ‘high degree of probability’ that the clause was binding had not been made out, but granted a temporary interim injunction pending a speedy trial of the question of the effect of the clause.

¹⁰³ Thus in Apple Corps v Apple Computer [1992] RPC 70, 77, where the injunction would not be determinative, although the Cyanamid principles were applied, Hoffmann J accepted that they had to be subject to the need for ‘caution’ in granting injunctions to restrain foreign proceedings; see also Marc Rich v Societa Italiana Impianti (The Atlantic Emperor) (No 2) (Hobhouse J, 11 November 1991). Regard was paid to comity when granting a temporary injunction in Midgulf International v Group Chimique Tunisienne [2009] 2 Lloyds Rep 411 [62].

¹⁰⁴ See Ch 7, section E, ‘The Angelic Grace Principles’.

¹⁰⁵ This appears to have been the approach adopted in XL Insurance v Owens Corning [2000] 2 Lloyds Rep 500, 508. There are numerous cases where a contractual injunction was granted on the basis that the injunction applicant had in fact shown that the foreign proceedings were in breach of contract, without it being suggested that he only had to satisfy a lower burden of proof: see eg Sohio Supply v Gatoil (USA) [1989] 1 Lloyds Rep 588 (CA) 592; Continental Bank v Aeakos Compania Naviera [1994] 1 Lloyds Rep 505 (CA) 509; Credit Suisse First Boston (Europe) v MLC (Bermuda) [1999] 1 Lloyds Rep 767; Nori Holding v Bank Otkritie Financial Corporation [2018] 2 Lloyds Rep 80.

¹⁰⁶ See eg A/S D/S Svendborg v Wansa [1996] 2 Lloyds Rep 559, 570; OT Africa Line v Hijazy (The Kribi) (No 1) [2001] 1 Lloyds Rep 76; National Westminster Bank v Utrecht-America Finance [2001] 3 All ER 733 (CA) [29]–[35]; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [24], [53]; Navigation Maritime Bulgare v Rustal Trading (The Ivan Zagubanski) [2002] 1 Lloyds Rep 106 [112]–[113], [121]–[122]; American International Specialty Lines Insurance v Abbott Laboratories [2003] 1 Lloyds Rep 267, 272; OT Africa Line v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA); CNA Insurance v Office Depot International (UK) [2005] Lloyds Rep IR 658, [27].

¹⁰⁷ Donohue v Armco [1999] 2 Lloyds Rep 649, [29]–[33]; not appealed on this ground, [2000] 1 Lloyds Rep 579 (CA) [22]; American International Specialty Lines Insurance v Abbott Laboratories [2003] 1 Lloyds Rep 267, 275. If an American Cyanamid approach were appropriate, then a different approach would have been taken in Credit Suisse First Boston (Europe) v Seagate Trading [1999] 1 Lloyds Rep 784, 797–98.

In Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 490, Morison J did use the language of ‘arguable case’; but there was no finding that this was the appropriate test, nor was the question of what was the appropriate test discussed. Similarly, in Rimpacific Navigation v Daehan Shipbuilding (The Jin Man) [2010] 2 Lloyds Rep 236 [67], David Steel J proceeded on the basis that it was sufficient that the injunction claimant could show there was a ‘strongly arguable’ case on the existence of the jurisdiction clause. However, no authority was cited.

¹⁰⁸ Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA) [74]–[79], [89]–[91]; Wilson v Michael Emmott [2018] 1 Lloyds Rep 299 (CA) [38]–[39].

See also Bankers Trust Co v PT Mayora Indah (Colman J, 20 January 1999); Bankers Trust Co v PT Jakarta International Hotels & Development [1999] 1 Lloyds Rep 910, 913; American International Specialty Lines Insurance v Abbott Laboratories [2003] 1 Lloyds Rep 267, 275 (although in that case, the point actually could have been determined at the interim stage); Transfield Shipping v Chiping Xinfa Huayu Alumina [2009] EWHC 3629 (QB) [51]–[58]; Stonehouse v Jones [2012] EWHC 1089, [10] (where this passage in the first edition of this work was approved); not contested in Malhotra v Malhotra [2013] 1 Lloyd Rep 285 [68]–[74], [153], [176]; common ground in Rochester Resources v Lebedev [2014] EWHC 2926 [31]–[32]; SwissMarine Corp v OW Supply and Trading AS [2015] 1 CLC 1040, [16]; common ground in Hamilton-Smith v CMS Cameron McKenna [2016] EWHC 1115 [18] (also using the language of whether the court ‘can point with confidence’ to such a clause); Emmott v Michael Wilson [2017] 1 Lloyds Rep 21, [30] (apparently uncontested on the point); Dell Emerging Markets (EMEA) Limited v Systems Equipment Telecommunications Services [2018] EWHC 702 [28], [61]; Perkins Engines v Ghaddar [2018] 2 Lloyds Rep 197 [23].

¹⁰⁹ The approach is common in the case law and is reflected not least in Aggeliki Charis Compania Maritima v Pagnan (The Angelic Grace) [1994] 1 Lloyds Rep 168, [1995] 1 Lloyds Rep 87 (CA). Thus, in Transfield Shipping v Chiping Xinfa Huayu Alumina [2009] EWHC 3629 (QB) [51]–[58], [70], Christopher Clarke LJ applied ‘high probability’ to the existence of the clause but then approached questions of discretion at large: at [70]–[79]. Similarly, in Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA) [74]–[79], [89]–[91]; ‘high probability’ was applied to proof of the clause, but questions of delay and comity were then analysed independent of ‘high probability’: at [137]–[141]. See for another recent example Essar Shipping v Bank of China (The Kishore) [2016] 1 Lloyds Rep 417, eg at [65]. However, cf contra the cases discussed in para 13.55.

¹¹⁰ Midgulf International v Group Chimique Tunisienne [2009] 2 Lloyds Rep 411 [36]; Mace (Russia) v Retansel Enterprises [2016] EWHC 1209, [11] (but the point was common ground); Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] EWHC 811 [53] (but no apparent argument to the contrary). Both strands of logic are present in Bankers Trust v PT Mayora Indah (Colman J, 20 January 1999); Bankers Trust v PT Jakarta International Hotels & Development [1999] 1 Lloyds Rep 910, 913.

¹¹¹ Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA) [74]–[79], [89]–[91]; Wilson v Michael Emmott & Partners [2018] 1 Lloyds Rep 299 (CA) [38]–[39]; followed in Perkins Engines v Ghaddar [2018] 2 Lloyds Rep 197 [23]; see also the summary given in Hamilton-Smith v CMS Cameron McKenna [2016] EWHC 1115 [18]; and the recent undefended decision in Qingdao Huiquan Shipping v Shanghai Dong He Xin Industry Group [2018] EWHC 3009 [27].

¹¹² See paras 13.48–13.50.

¹¹³ SwissMarine Corp Ltd v OW Supply and Trading AS [2015] 1 CLC 1040 [16], adopting the analysis in the first edition of this work (which was based on the earlier case law). See earlier Donohue v Armco [1999] 2 Lloyds Rep 649 [29]–[33] (Aikens J regarded ‘credible’ evidence as at least what was required, leaving open the possibility that a higher standard would be necessary); and see at [2000] 1 Lloyds Rep 579 (CA) [22], [50]; followed in Society of Lloyds v White (Cresswell J, 3 March 2000).

In Mike Trading and Transport Ltd v R Pagnan & Fratelli (The Lisboa) [1980] 2 Lloyds Rep 546 (CA) 551, Waller LJ (but not the other members of the Court of Appeal) considered it was sufficient in order to refuse an injunction that the respondent had an ‘arguable case’ that the foreign proceedings were not in breach of the clause; it is suggested this is an over-cautious approach; and it does not reflect the modern law.

¹¹⁴ SwissMarine Corp v OW Supply and Trading [2015] 1 CLC 1040 [16]; Donohue v Armco [1999] 2 Lloyds Rep 649, [29]–[33], [40], [2000] 1 Lloyds Rep 579 (CA) [51], [59]–[65].

¹¹⁵ For the operation of the doctrine of severability, see Fiona Trust & Holding Corp v Privalov [2008] 1 Lloyds Rep 254 (HL) and Ch 7, paras 7.40–7.42.

¹¹⁶ Donohue v Armco [1999] 2 Lloyds Rep 649, [29]–[33], [2000] 1 Lloyds Rep 579 (CA) 592 [50]; Crystal Decisions (UK) v Vedatech [2004] EWHC 1872 [32]–[33]. For an example where impeachment was successful, because part of the mistake alleged was a mistake as to the jurisdiction and law applicable, see Credit Suisse First Boston (Europe) v Seagate Trading [1999] 1 Lloyds Rep 784, 797–98.

¹¹⁷ Hemain v Hemain [1988] 2 FLR 388 (CA).

¹¹⁸ Hemain v Hemain [1988] 2 FLR 388 (CA); Bloch v Bloch [2003] 1 FLR 1; R v R (Divorce: Hemain Injunction) [2005] 1 FLR 386; JKN v JCN [2011] 1 FLR 826.

¹¹⁹ Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913, [2004] 1 Lloyds Rep 471 (CA) 474.

¹²⁰ T v T [2014] 1 FLR 96.

¹²¹ See R v R (Divorce: Hemain Injunction) [2005] 1 FLR 386 (where a permanent injunction was refused but a temporary injunction pending determination of the English jurisdiction challenge was granted). Munby J held at [54] that in relation to Hemain injunctions it was not generally necessary to show that England was the natural forum.

¹²² As suggested by the Court of Appeal in Hemain v Hemain [1988] 2 FLR 388 (CA) 393B–C and E–F.

¹²³ For the exercise of discretion in respect of final injunctions, see Ch 4, and in particular section N, ‘Other Discretionary Considerations’.

¹²⁴ See eg Markel International v Craft (The Norseman) [2007] Lloyds Rep IR 403, [32]; Transfield Shipping v Chiping Xinfa Huayu Alumina [2009] EWHC 3629 (QB) [71]–[79].

¹²⁵ See eg Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 54 [36].

¹²⁶ See eg Hospira UK v Eli Lilly [2008] EWHC 1862 (Pat) [11]–[13].

¹²⁷ Berliner Bank v C Czarnikow Sugar (The Rama) [1996] 2 Lloyds Rep 281, 298; Industrial Maritime Carriers (Bahamas) v Sinoca International (The Eastern Trader) [1996] 2 Lloyds Rep 585, 602–03.

¹²⁸ Aggeliki Charis Compania Maritima v Pagnan (The Angelic Grace) [1995] 1 Lloyds Rep 87 (CA) 96; Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230, [12]; STX Pan Ocean v Woori [2012] 2 Lloyds Rep 99 [16]; AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [25]; Southport Success v Tsingshan Holding Group (The Anna Bo) [2015] 2 Lloyds Rep 578 [35].

For further authority, see Continental Bank v Aeakos Compania Naviera [1994] 1 Lloyds Rep 505, 512 (doubted on this point, and others, in A Briggs, ‘Anti-European Teeth for Choice of Court Clauses’ [1994] LMCLQ 158, 162); Schiffahrtsgesellschaft Detlev von Appen v Voest Alpine Intertrading [1997] 2 Lloyds Rep 279 (CA) 285; Bankers Trust v PT Jakarta International Hotels & Development [1999] 1 Lloyds Rep 910, 915; OT Africa Line v Hijazy (The Kribi) (No 1) [2001] 1 Lloyds Rep 76 [87]; Starlight Shipping v Tai Ping Insurance (The Alexandros T) [2008] 1 Lloyds Rep 230, [12]; Sheffield United FC v West Ham United FC [2009] 1 Lloyds Rep 167 [22]–[23]; Steamship Mutual Underwriting Association (Bermuda) Ltd v Sulpicio Lines [2008] 2 Lloyds Rep 269 [32] (a decision reached at an uncontested hearing); Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [61]–[62]; Skype Technologies v Joltid [2011] ILPr 8 [33]; U&M Mining Zambia v Konkola Copper Mines [2013] 2 Lloyds Rep 218 [22]–[23]. C Ambrose, ‘Can Anti-Suit Injunctions Survive European Community Law’ (2003) 52 ICLQ 401, suggests contra that damages can be an adequate remedy. E Peel, ‘Exclusive Jurisdiction Agreements: Purity and Pragmatism in the Conflict of Laws’ [1998] LMCLQ 182, 207–09, suggests that the courts should consider in each case whether damages may not be an adequate remedy before granting an injunction. In practice that is not what happens.

¹²⁹ ADM Asia-Pacific Trading v PT Budi Semesta Satria [2016] EWHC 1427, [55].

¹³⁰ See eg Hemain v Hemain [1988] 2 FLR 388 (CA) 390C, recording the grant of an interim mandatory injunction at first instance (its mandatory aspect was not challenged on appeal); Turner v Grovit [2002] 1 WLR 107 (HL) [16], recording the grant of such an interim mandatory order by the Court of Appeal (the issue of a mandatory order was only mentioned and not explored in the Court of Appeal’s reported judgment [2000] QB 345, 350B, 364F); Comet Group v Unika Computer [2004] ILPr 1 [39]–[45]; Masri v Consolidated Contractors (No 3) [2009] QB 503 [6]–[7]. A mandatory interim injunction was granted in British Airways Board v Laker Airways [1984] QB 142 (CA) 203 (overturned on appeal on other grounds, [1985] AC 58 (HL)), but was stayed until determination of Laker’s appeal to the House of Lords: see British Airways Board v Laker Airways (No 2) [1984] ECC 304 (CA) [1]–[2] (where the terms of the mandatory order are set out). Mandatory interim injunctions were granted requiring the injunction defendant to release vessels from ship arrests abroad in Kallang Shipping Panama v Axa Assurances Senegal (The Kallang) (No 2) [2009] 1 Lloyds Rep 124 [20]–[26] and Sotrade Denizcilik Sanayi Ve Ticaret v Amadou Lo (The Duden) [2009] 1 Lloyds Rep 145 [23]–[29]. For final mandatory anti-suit injunctions, see Ch 3, paras 3.38–3.41.

¹³¹ See eg Evergreen Marine (Singapore) v Fast Shipping & Transportation [2014] EWHC 4893 (QB) [18]–[19].

¹³² Shepherd Homes v Sandham [1971] Ch 340, 348D–352A; Locabail International Finance Ltd v Agroexport [1986] 1 WLR 657 (CA) 663–64; Nottingham Building Society v Eurodynamic Systems [1993] FSR 468.

¹³³ Frank Industries UK v Nike Retail [2018] FSR 24 (CA).

¹³⁴ National Crime Agency v N [2017] 1 WLR 3938 [89].

¹³⁵ National Commercial Bank Jamaica v Olint Corp [2009] 1 WLR 1405 [16]–[20].

¹³⁶ See eg Credit Suisse First Boston (Europe) v Seagate Trading [1999] 1 Lloyds Rep 784, 792–93 (mandatory injunction refused on grounds of comity); Commercial Union Assurance v SIMAT Helliesen & Eichner [2001] Lloyds Rep IR 172, 177 (prohibitory interim injunction granted and mandatory interim injunction stood over with liberty to restore); Al-Bassam v Al-Bassam [2004] EWCA Civ 857, [30]; Ecom Agoindustrial Corp v Mosharaf Composite Textile Mill [2013] 2 Lloyd Rep 196 (undefended), [20], [37]. In Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1, [209], Aikens J observed that although a mandatory injunction had been granted in Turner v Grovit by the Court of Appeal (see [2002] 1 WLR 107 (HL), 114 (citing the Court of Appeal’s order)), that had been an ‘extreme’ case.

In Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] EWHC Comm 25, [24], a ‘high degree of assurance’ was required for any mandatory injunction; and higher thresholds were also propounded in Comet Group v Unika Computer [2004] ILPr 1, [39]–[45] (‘unusually strong and clear’), and Evergreen Marine (Singapore) v Fast Shipping & Transportation [2014] EWHC 4893 (QB) [19] (‘exceptional’).

¹³⁷ Credit Suisse First Boston (Europe) v Seagate Trading [1999] 1 Lloyds Rep 784, 792–93; Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1 [210]. The interference in fact remains indirect, because the order is against the party, not the foreign court. The language of ‘direct’ interference is a metaphor; but it expresses the reality that the indirect interference created by a mandatory injunction to discontinue may be viewed as particularly invasive.

¹³⁸ See Comet Group v Unika Computer [2004] ILPr 1, [39]–[45]; Evergreen Marine (Singapore) v Fast Shipping & Transportation [2014] EWHC 4893 (QB) [18]–[19]; and also Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] 2 Lloyds Rep 192, [19] (this was a final injunction but a mandatory interim injunction had been granted at an earlier stage). See also the discussion at Ch 3, para 3.39.

¹³⁹ This is the approach applied in Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] 2 Lloyds Rep 192 [19].

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