18.01  The ‘common law’ rules of jurisdiction, which are principally contained in the rules on service in CPR Part 6,¹ are the main relevant rules for jurisdiction (subject to the effect of the Hague Convention on the Choice of Court²) where the subject matter of the proceedings is outside the material scope of the Brussels–Lugano regime, and also, through Article 6 of (p. 392) the Recast, where the defendant is domiciled outside the Brussels–Lugano zone.³ If the consequence of Brexit is that the Brussels–Lugano regime ceases to operate, then the common law rules of jurisdiction will become again the primary rules governing territorial jurisdiction, combined with the Hague Convention in cases concerning jurisdiction clauses.⁴

18.02  Jurisdiction under the common law rules is based on service of originating process on the defendant.⁵ However, at common law proceedings can in general only be served within ‘the jurisdiction’, that is England and Wales, unless there is statutory authority permitting service out of the jurisdiction.⁶ The common law rules of jurisdiction therefore consist, in essence, of the rules by which service may be effected within the jurisdiction; and the rules which give the court power to grant permission to serve proceedings out of the jurisdiction.

18.03  The analysis in this chapter considers jurisdiction over claims or applications for anti-suit injunctions under the common law rules, and also under the Hague Convention on the Choice of Court. It is not intended to be a general survey of the rules of jurisdiction. Only issues of particular relevance to anti-suit injunctions are analysed in detail.

18.04  The rules for service of claim forms within the jurisdiction have not, so far, given rise to any questions of specific interest in relation to anti-suit injunctions.

18.05  In ordinary civil litigation, claim forms can be served within the jurisdiction on any person or entity present within the jurisdiction under the rules set out in CPR Part 6 sections I and II, and also, in relation to companies, under the Companies Act 2006.⁷ In brief, these rules permit claim forms to be served: by personal service on the defendant within the jurisdiction;⁸ by sending them to defined addresses within the jurisdiction, including in particular the defendant’s residence, principal or registered office, or place of business, within the jurisdiction (if such exists);⁹ at an address for service given by the defendant;¹⁰ on the defendant’s solicitor with authority to receive service;¹¹ by a contractually agreed method;¹² or in certain cases on the defendant’s agent in respect of a contract.¹³

(p. 393) 18.06  Even temporary presence in the jurisdiction is sufficient for personal service on a natural person.¹⁴ However, personal service on a company, by service on one of its officers within the jurisdiction, can only be effective if the company carries on business within the jurisdiction.¹⁵

18.07  If difficulties with the normal rules of service arise, an application can be made to the court to permit service by an alternative method,¹⁶ or to dispense with service altogether,¹⁷ although these rules cannot be used to circumvent the jurisdictional constraints imposed by the rules which govern when service out of the jurisdiction is permissible.¹⁸

18.08  In addition, if a defendant has been purportedly but invalidly served with proceedings within the jurisdiction, the court will nevertheless have jurisdiction over the case if the defendant submits to the jurisdiction of the court.

18.09  Proceedings that have been validly served within the jurisdiction can be stayed under CPR Part 11 on the grounds of forum non conveniens, if the defendant can show that there is some other available forum, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and the ends of justice. The burden is on the defendant to show that there is another forum which is clearly or distinctly more appropriate than the English forum.¹⁹

18.10  The power to stay on grounds of forum non conveniens cannot be exercised if the defendant is domiciled within England and Wales and the matter falls within the scope of the Brussels–Lugano regime.²⁰

18.11  However, there is little room for the application of the doctrine of forum non conveniens in relation to anti-suit injunctions. If there is a reasonable case on the merits for the grant of an anti-suit injunction to protect proceedings in England, or for a ‘single forum’ injunction,²¹ or even an injunction to protect proceedings abroad, then it will usually be obvious that England is the most convenient forum to hear the claim for an anti-suit injunction.²² The limitations on the grant of the remedy incorporate, via the principles of (p. 394) comity, essentially the same constraints as the doctrine of forum non conveniens imposes in terms of jurisdiction.

18.12  Under the common law rules, proceedings can only be served on defendants outside the jurisdiction if the court grants permission to do so.²³ In ordinary civil litigation, the court has power to grant permission, in its discretion, under statutory powers contained principally in CPR 6.36 and Practice Direction 6B (‘PD 6B’).²⁴ Other powers to permit service out in litigation on specific topics are concerned in other CPR rules such as CPR 6.33(2B) for the Hague Convention, CPR 62.5 for arbitration, certain other subject-specific rules, and certain statutes;²⁵ of those, this work will address only the Hague Convention and CPR 62.5.

18.13  In order to persuade the court to exercise its discretion to grant permission to serve proceedings out of the jurisdiction, the claimant must show in respect of each of his claims that (a) there is a serious issue to be tried (or a reasonable prospect of success, which has been held to be the same thing);²⁶ (b) there is a good arguable case that the claim falls within one of the gateways for jurisdiction (for example the heads in PD 6B para 3.1); and (c) that England is clearly the appropriate forum for the trial of the action.²⁷ Applications for permission to serve proceedings out of the jurisdiction are usually made and determined on paper, without notice to the defendant, who then has the right to apply to set aside service under CPR Part 11.

18.14  Where an anti-suit injunction is granted to restrain vexatious or oppressive (or unconscionable) conduct, or because it is otherwise in the interests of justice to grant the injunction, (p. 395) it is in general ordered under section 37(1) of the Senior Courts Act 1981 to give effect to principles of equity.²⁸

18.15  There is an unresolved debate about whether a non-contractual anti-suit injunction of this nature enforces a substantive underlying equitable right, or whether it is a claim for an injunction which responds as a matter of equitable principle to vexation and oppression or unconscionability independent of such an underlying right.²⁹ The answer is of more than merely academic interest, not least because it may affect whether it is possible to bring anti-suit injunctions based on such principles of equity within CPR 6.36 at all.

18.16  The Privy Council had concluded in Mercedes Benz v Leiduck that in order for a writ to be served under RSC Order 11, the ancestor of CPR 6.36, the proceedings must be ‘designed to ascertain substantive rights’.³⁰ It was held that at first instance in Cool Carriers this doctrine also governs the application of what was CPR 6.20, the immediate predecessor of the current CPR 6.36,³¹ although there is reason to doubt whether this can be right.³²

18.17  In Amoco v British American Offshore, Langley J considered the implications of Mercedes Benz v Leiduck, and concluded obiter that as a claim for an anti-suit injunction based on vexation and oppression did not assert any legal or equitable right against the injunction (p. 396) defendant, it was not ‘designed to ascertain substantive rights’, but designed only to determine in which court such rights should properly be determined. It followed that it could not be served out of the jurisdiction under RSC Order 11.³³

18.18  If correct, and if it applied to the CPR, the obiter reasoning in Amoco would have far-reaching consequences; it would mean that the court would have jurisdiction over final anti-suit injunctions based on equitable principles of vexation, oppression, and unconscionability only in respect of defendants who could be served with proceedings within England and Wales.³⁴ But this would be a very impractical result, and it is submitted that Langley J’s conclusion is not the law. To begin with, it is possible that anti-suit injunctions based on vexation or oppression can be viewed as enforcing a substantive equitable right, in both ‘single forum’ and ‘alternative forum’ cases.³⁵ In any event, even if that is not so, and even if Mercedes Benz remains the law under the CPR, which is doubtful, it is suggested that an anti-suit injunction is a form of sui generis substantive relief which can legitimately be brought within CPR 6.36, even if it enforces no underlying substantive equitable right: it does claim for a substantive cause of action irrespective of the existence of any such underlying right.³⁶ In contrast to freezing injunctions, anti-suit injunctions can undoubtedly form the sole claim in conventional proceedings for final relief.³⁷ Amoco has not been applied in practice in the subsequent case law and the courts have on a number of occasions upheld service out of the (p. 397) jurisdiction of anti-suit injunctions based on vexation, oppression, and unconscionability under CPR 6.36 and para 3.1 of PD 6B, or assumed that this would be possible in principle.³⁸ Any contrary result would be strange. It would mean, for example, that where a valid, vexation-based, single forum injunction was claimed against an English-domiciled defendant and there was a necessary and proper party to that injunction claim who was domiciled abroad, service out of the jurisdiction on the co-defendant would be impossible.

18.19  The following analysis therefore assumes that it is possible in principle to serve a claim for final anti-suit injunction based on vexation, oppression, or unconscionability out of the jurisdiction under the CPR gateways for jurisdiction if they apply.

18.20  Quasi-contractual anti-suit injunctions, sought against a third party pursuing rights derived from a contract containing an exclusive forum clause, have been viewed as grounded, on the balance of the case law so far, on an equitable right of the original debtor’s not to be sued by the third party in a forum which is not that agreed by the original creditor.³⁹ On that basis, no problems with Mercedes-Benz v Leiduck would arise. In any event, it is clear from the authorities that such injunctions can be served out of the jurisdiction under CPR 6.36 and PB 6B para 3.1(6), and also CPR 62.5 where they relate to an arbitration clause.⁴⁰

(p. 398) 18.21  A claim for a final injunction for an anti-suit injunction which is based on an exclusive jurisdiction clause, or another contractual right not to be sued save in the chosen, forum, is clearly a claim ‘designed to ascertain substantive rights’ to the extent required. Such a claim may be served out of the jurisdiction under CPR 6.36 and PD 6B where a relevant head of PD 6B applies,⁴¹ and where it enforces an arbitration clause, can be served out of the jurisdiction under CPR 62.5.⁴²

18.22  PD 6B para 3.1 contains a list of specific jurisdictional gateways, defined generally by subject matter, but sometimes by characteristics of the defendant and sometimes by the nature of the remedy sought. They will need to be considered in turn. As will be seen, the heads of jurisdiction which are of real practical use in relation to final anti-suit injunctions are principally PD 6B para 3.1(3) and (6), para 3.1(4A), and CPR 62.5.

18.23  This section considers only claims for final relief, and thus does not discuss PD 6B para 3.1(5). Jurisdiction over applications for interim relief are considered in section J, ‘Jurisdiction and Interim Anti-Suit Injunctions’.

18.24  However, it should be noted that the effect of CPR 6.38(1) and 6.37(5)(b)(ii), as interpreted in Star Reefers⁴³ and read together with Masri (No 3),⁴⁴ is that the court will generally have jurisdiction under the common law rules over interim anti-suit injunctions against the existing parties to litigation already before the courts.⁴⁵ Further, as a matter of English procedural law, it is possible to obtain an interim anti-suit injunction in the context of existing proceedings without corresponding final relief.⁴⁶ In most cases, it will be sufficient to obtain alternative forum injunctions between the parties to litigation on an interim basis, and a final injunction is not necessary, nor required. Consequently, it is only where a free-standing single forum injunction is sought, or in situations posing analogous problems, that the constraints imposed by PD 6B are likely to be of decisive importance.⁴⁷

18.25  PD 6B para 3.1(1) allows service out of the jurisdiction where ‘a claim is made for a remedy against a person domiciled within the jurisdiction’. This is an available head of jurisdiction (p. 399) for anti-suit injunctions, although it will be of limited significance in practice, as it will only apply outside the subject matter scope of the Brussels–Lugano regime (as matters stand), and only as against persons temporarily abroad.

18.26  PD 6B para 3.1(2) allows service out of the jurisdiction where ‘a claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction’. This has a negative limb and a positive limb.

18.27  The negative limb of CPR 6.20(2), relating to claims for injunctions ordering the defendant to ‘refrain from doing an act within the jurisdiction’, will cover injunctions to restrain a defendant from pursuing proceedings in England.⁴⁸ However, the negative limb will not be applicable to claims for injunctions which are in substance intended to restrain foreign proceedings, even where in theory the injunction could also cover proceedings within the jurisdiction of the English courts, because in substance the act which the defendant is meant to be restrained from doing is the act of litigating before the foreign court.⁴⁹

18.28  In Amoco v British American Offshore, an injunction was sought to restrain proceedings in Texas. It was argued that this could be brought within the predecessor of PB 6B para 3.1(2) because the order restraining the Texan proceedings would also restrain the service in England of documents produced in the Texan proceedings. This argument was curtly rejected; it would mean that ‘the tail would indeed be wagging the dog’.⁵⁰

18.29  The positive limb of PD 6B para 3.1(2) covers injunctions sought to order a party ‘to do’ an act within the jurisdiction. However, an anti-suit injunction in mandatory form, requiring a party to discontinue or stay proceedings abroad, would not fall within this. Similarly, the typical prohibitory form of anti-suit injunction, restraining a party from pursuing proceedings abroad, is not an order relating to the performance of acts in England. A party could not in general be positively required to sue in England, or in any particular court, even if it were appropriate to restrain him from suing elsewhere.⁵¹ An order requiring a party to sue ‘only’ in England would in substance be a prohibitory order relating to the foreign proceedings, and would not fall within the spirit of PD 6B para 3.1(2), as the aim of the prohibition would be to prevent foreign proceedings, not compel English proceedings.⁵²

(p. 400) 18.30  Consequently, PD 6B para 3.1(2) will not provide a workable jurisdictional gateway for the service out of the jurisdiction of injunctions to restrain foreign proceedings.⁵³ It will be available for anti-suit injunctions to restrain proceedings in England.⁵⁴

18.31  PD 6B para 3.1(3) permits service out of the jurisdiction on a secondary defendant who is a ‘necessary and proper party’ to a claim against a primary defendant, provided that (a) there was a ‘serious issue to be tried’ between the claimant and the primary defendant; (b) the court has jurisdiction over the primary defendant in some other way, and the claim has been or will be served on him;⁵⁵ and (c) the additional defendants would have been proper parties to the action had they all been present in England.⁵⁶ This gateway is available for anti-suit injunctions. For example, if the court has jurisdiction to hear a claim for an anti-suit injunction against injunction defendant A, it can also have jurisdiction under para 3.1(3) to hear a claim for a non-contractual injunction against connected defendant B where B’s vexatious and oppressive conduct is bound up with A’s conduct.⁵⁷ However, it is a head of jurisdiction to be used with ‘care’ and ‘forbearance’.⁵⁸

18.32  PD 6B para 3.1(4) permits service out of the jurisdiction where the claim for which permission is sought is an ‘Additional Claim’ brought by a party to an existing action; and the intended defendant to the additional claim is a necessary and proper party to the ‘claim or additional claim’.

(p. 401) 18.33  The ‘additional claims’ that fall within this provision include counterclaims against the original claimant, and counterclaims which have additional defendants,⁵⁹ as well as third-party claims more broadly. This head of jurisdiction is available in principle for anti-suit injunctions. (Counterclaims are addressed in section G, ‘Jurisdiction by Way of Counterclaim’.)

18.34  On its face, PD 6B para 3.1(4) could create a surprisingly broad jurisdiction for additional claims, because the words ‘claim or additional claim’ include the additional claim itself as well as the claim against the original defendant.⁶⁰ If applied without constraint, this would be too broad, as it could permit the service out of proceedings against a new defendant who is a ‘necessary and proper party’ to the additional claim for which jurisdiction is sought even though the additional claim has no connection to the underlying claim. However, the court should and will control and exclude jurisdiction over unconnected additional claims. This could be done procedurally, by use of its procedural powers to require an inappropriate additional claim to be dealt with separately under CPR 20.9 and 3.1(2)(e) and (j). Or it could be achieved by implication into para 3.1(4) of an implied condition that there must be a sufficient connection between the additional claim and the original claim, or a similar restriction which will produce the result that, in effect, the new defendant must be a necessary and proper party to the existing litigation.⁶¹ In Goldstone v Goldstone the Court of Appeal interpreted 3.1(4) as intended to enable the English court to exercise jurisdiction ‘if it is just to do so because he is a necessary and proper party to litigation which is already before the court’.⁶² Excessively broad application of this gateway could also be controlled by application of the principle that permission to serve proceedings out of the jurisdiction will not be given where England is not the proper place to bring the claim.⁶³

18.35  This head of jurisdiction has so far been of limited practical relevance to anti-suit injunctions. Anti-suit injunctions by defendants against the original claimants are usually brought by interim injunction rather than counterclaim, and on the court’s current broad approach to the ancillary jurisdiction, face few jurisdictional difficulties. Even when anti-suit injunctions are brought by way of final counterclaim, it will usually be possible to serve them on the address for service which claimants are required to give under CPR 6.23.⁶⁴ Thus far, anti-suit injunctions have not been brought by way of ‘third-party’ claim, and the factual situations where this could be done naturally may well be rare. However, there may be cases where this head will be of real use, for example where a final anti-suit injunction is claimed by way of counterclaim against not only the original claimant but also other parties involved in the foreign litigation. In such a case, it may be possible to use PD 6B para 3.1(4) to obtain permission to serve the counterclaim out of the jurisdiction on the other parties, as additional defendants to the counterclaim for an injunction, provided that they are ‘necessary and proper’ parties and there are sufficient connections between the various parties and the respective facts to satisfy the criteria of CPR 20.9.

18.36  The revisions to the CPR that came into force on 1 October 2015 introduced new PD 6B para 3.1(4A), which provides that a claim may be served out of the jurisdiction where: ‘A claim is made against the defendant in reliance on one or more of paras (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.’ This is a radical change to the common law rules of jurisdiction. For the first time, it permits jurisdiction to be established towards a defendant over a claim which would not otherwise fall within the rules, merely because of the connection between that claim and one which does fall within the rules.⁶⁵ No parallel exists under the Brussels–Lugano regime. Many questions arise as to how far this ‘connected claim’ jurisdiction can extend, and the case law has so far given only partial answers. Overall, head 4A seems to be applied relatively broadly and flexibly.⁶⁶

18.37  In Eli Lilly v Genentech, Birss J concluded as a matter of principle that while a ‘close’ connection was required, this would not preclude jurisdiction where the second claim has some facts unique to it and distinct to those in issue on the anchor claim; nor was it necessary for there to be a ‘single investigation’. On whether the connection was sufficiently close:

18.38  However, the drafting of 3.1(4A) is strange and appears to create arbitrary distinctions, because on its face it does not apply in all cases where jurisdiction is obtained under the common law rules or otherwise, but only where jurisdiction is obtained under a limited set of defined heads of PD 6B 3.1, namely 3.1(2), (6)–(16), and (19)–(21). If applied literally, this would create odd results. Take, for example, the case where jurisdiction is obtained over the initial claim of a party by service within the jurisdiction, who then leaves the jurisdiction; (p. 403) but the claim was one which could have been served out of the jurisdiction under one of the defined heads, had the defendant been out of the jurisdiction from the beginning. It is then desired to add a new claim which is sufficiently connected within 4A. But 4A does not apply on its literal words, because as it happens the initial claim was not served ‘in reliance on paragraphs (2), (6) to (16) … etc’. It would be artificial if the connected claims jurisdiction could not apply in this case, but the courts have not yet confronted the problem. Separately, it seems to have been illogical to leave out PD 6B para 3.1(1), as there are cases where a person’s domicile has changed.⁶⁸

18.39  CPR 3.1(4A) will be relevant in various ways to claims for anti-suit injunctions, depending on the specific facts of particular cases. The most important question, however, will be how it works where the court has jurisdiction over the merits under one of the defined heads—for example in a basic contractual claim under an English law contract, where 3.1(6) applies to the main claim, or an action in tort where 3.1(9) applies—but it would not have been possible to fit a final claim for an anti-suit injunction within any of the other heads of PD 6B para 3.1. There are real difficulties in bringing final claims for non-contractual, vexation based, anti-suit injunctions brought to protect existing proceedings in England, within the other heads of PD 6B para 3.1. In such a case, is the claim for a final anti-suit injunction one that arises out of the ‘same or closely connected facts’ as the underlying claims on the merits it seeks to protect? The question is open on the face of the words. It could be said (in many cases) that the claim for an injunction arises not out of the facts disputed in the underlying contractual or tortious action, but out of the separate facts relating to the foreign litigation. But it is likely that the English court will conclude that the connection between the protective injunction and the English litigation is sufficient. Using the logic of Birss J in Eli Lilly v Genentech, this is consistent with pragmatic considerations and overall procedural justice. It will usefully fill what was otherwise a lacuna in the rules and also enable the jurisdiction for final injunctions to match the ancillary jurisdiction over interim injunctions to protect the existing proceedings (which is discussed in sub-sections 6–11 following).

18.40  If European jurisdictional law remains law, the Hague Convention on the Choice of Court will have limited additional importance. Claims under exclusive jurisdiction clauses, or to enforce them by injunction, will principally be brought under Article 25 of the Brussels I Recast (cf Ch 17, paras 17.44–17.47). In most cases governed by Article 25, it appears there will be overlapping parallel Hague Convention jurisdiction, provided they fall within the scope of the Convention.⁶⁹ But Article 25 of the Recast will remain the primary jurisdictional basis, unless the case falls within the (currently) limited cases addressed by Article 26(6) of the Convention, where the Convention can override the Brussels–Lugano regime (p. 404) (and then only if there is a material difference, which generally there will not be); or in cases where the defendant is domiciled outside the Brussels Lugano zone, and jurisdiction is broader under the Convention than Article 25 (for example where the definition of an agreement under Article 3 of the Convention is broader than the required ‘consensus’ under Article 25).

18.41  However, if the effect of Brexit is to take the United Kingdom out of the Brussels–Lugano regime, the Hague Convention will become much more significant. Although at present the contracting states are limited in number (the EU, potentially the UK, Mexico, Montenegro, and Singapore), the domestic jurisdiction that is conferred by the convention applies (in international cases) irrespective of the domicile of the defendant and whether or not defendants are domiciled in contracting states. Thus, the Hague Convention will become the principal (although not exhaustive) jurisdictional basis for all claims (in international cases), brought under jurisdiction clauses within its temporal and material scope.⁷⁰ Service out of the jurisdiction, for claims over which the court has jurisdiction under the Convention, can be effected without permission under CPR 6.33(2B).

18.42  PD 6B para 3.1(6) provides that proceedings may be served out of the jurisdiction if:

a claim is made in respect of a contract where the contract—

1. (a)  was made within the jurisdiction;

2. (b)  was made by or through an agent trading or residing in the jurisdiction;

3. (c)  is governed by English law; or

4. (d)  contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.

18.43  There have been significant disputes as to the scope of PD 6B para 3.1(6) in general, which have not yet been fully resolved, and have consequences for the scope of jurisdiction to hear claims for anti-suit injunctions. Debates have concerned the extent to which the words ‘in respect of a contract’ extend beyond contractual claims conservatively conceived, in two main dimensions: whether and when words can cover claims by or against persons not party to the contract, and how far they extend to cover claims that do not assert positive contractual rights.

18.44  We will turn first to direct contractual claims for injunctions, before addressing the more complicated issues which arise in relation to quasi-contractual injunctions, or injunctions based on vexation and oppression.

18.45  The analysis in relation to direct contractual claims to enforce exclusive jurisdiction clauses is simple. If, in a civil and commercial matter which falls within the scope of the Brussels–Lugano regime, or where the Hague Convention on the Choice of Court applies,⁷¹ an (p. 405) anti-suit injunction is sought to enforce an exclusive or non-exclusive jurisdiction clause in favour of the English courts against a party to such a clause, and the anti-suit injunction itself falls within the scope of the clause as properly interpreted, then the English courts will have jurisdiction under Article 25 of the Recast, or under the Convention, or both, and both of those statutory regimes will apply regardless of domicile. Consequently, service out of the jurisdiction can be effected without permission under CPR 6.33.⁷²

18.46  This is a change compared to Article 23 of Regulation 44/2001, which applied only where one of the parties was domiciled within a Brussels–Lugano state. It follows that para 3.1(6)(d) will now often be unnecessary in contractual cases. However, para 3.1(6)(d) will still be relevant for claims to enforce jurisdiction clauses by injunction if the litigation is outside the scope of the Brussels–Lugano regime or the Hague Convention but is covered by a jurisdiction clause. In such a case, para 3.1(6)(d) will apply as the injunction is a claim ‘in respect of’ the jurisdiction clause.⁷³ In addition, Article 25 and the Convention do not preclude the application of para 3.1(6)(d) where it is broader. Thus, even within the material scope of the Brussels–Lugano regime, provided the injunction defendant is outside the Brussels–Lugano zone, para 3.1(6)(d) may also be used in respect of contractual claims which satisfy the common law criteria for a contract but not the potentially more restrictive thresholds for Article 25 (the Hague Convention may also be an available route in some such cases).

18.47  In addition, although PD 6B para 3.1(6)(d) does not apply to arbitration clauses, permission to serve out anti-suit injunctions to enforce arbitration clauses governed by English law can be obtained under para 3.1(6)(c), as they are claims ‘in respect of a contract’ ‘governed by English law’, in addition to under the specific arbitration power in CPR 62.5 (to which we will return). Arguments that CPR 62.5 should be the exclusive head in respect of injunctions to enforce an arbitration clause have been rejected, which is a sensible approach.⁷⁴

18.48  A third-party quasi-contractual anti-suit injunction is sought to enforce a contractual forum clause against a third party who brings claims derived from the original creditor’s contractual rights against the original debtor, but seeks not to comply with a contractual (p. 406) forum clause that was binding on the creditor under the original contract.⁷⁵ It has been consistently held, most recently by Teare J in The Yusuf Cepnioglu, that this sort of quasi-contractual claim is made ‘in respect of a contract’ within PD 6B para 3.1(6), even though the third-party injunction defendant is not actually a party to the contract,⁷⁶ and it is submitted this is the correct analysis.⁷⁷

(p. 407) 18.49  Consequently, the court can have jurisdiction over such claims under PD 6B para 3.1(6)(d), if the contract contains an exclusive jurisdiction clause in favour of the English courts,⁷⁸ or under PD 6B para 3.1(6)(c) if it contains an arbitration clause governed by English law.

18.50  Similarly, a claim for a declaration that an English exclusive jurisdiction clause is in effect binding against the third party can also fall within PD 6B para 3.1(6).⁷⁹

18.51  A more difficult situation arises where, on the injunction claimant’s own case, he is not party to the underlying contract, but the injunction defendant’s substantive claims against the injunction claimant are contractual, and inherently subject to an exclusive forum clause in the contract.

18.52  In The Alexandros T, claims were brought in the Chinese courts by cargo owners not only against the ship’s owners (in breach of an arbitration clause) but also against the ship’s managers. The managers alleged that as a matter of Chinese law, the claims against them were contractual (or in bailment), if they had any substance at all, although the managers denied they owed any obligations to the cargo owners of any sort. In contrast, the cargo owners alleged that their Chinese claims were statutory and not contractual. Cooke J could not resolve this dispute of expert evidence but concluded that, however it was answered, (p. 408) in circumstances where no party alleged that the managers were party to the arbitration agreement, the claim for an anti-suit injunction by the managers could not be a contractual claim, and thus did not fall within what is now PD 6B para 3.1(6).⁸⁰

18.53  It is doubtful whether this decision is correct. If the claim in China was in substance contractual from the perspective of English law, then the managers’ claim for an anti-suit injunction could be viewed as a quasi-contractual injunction, which sought in effect to prevent a party whose substantive claims were contractual from not being able to claim the benefit of the contract without the burden of the contractual forum clause.⁸¹ If so, it is well arguable that such a claim is ‘in respect of a contract’, as the essence of the juridical right asserted to justify the injunction is contractual.⁸² This situation is close in practice to the quasi-contractual injunction over which jurisdiction was accepted in Yusuf, and using Teare J’s approach in The Yusuf Cepnioglu, it can be said that there is a ‘sufficient connection’ to the contract.⁸³ The case for applying PD 6B para 3.1(6) will be a fortiori where, although the claimant denies there is a contract, the defendant itself alleges that its claims are contractual.⁸⁴

18.54  The eventual answer, or at least the reasoning used, may depend in part on the resolution of the current debate in the authorities about whether PD 6B para 3.1(6) should be broadly interpreted as covering any claims sufficiently ‘connected’ to the contract (which can be called Longmore LJ’s view), or whether in contrast it covers only claims under contracts to which the defendant is alleged to be a party, or only claims to assert a contractual right (which can be called Tomlinson LJ’s view).⁸⁵

18.55  What if the underlying contract is governed by English law, but contains no exclusive forum clause, and an anti-suit injunction is sought to protect ongoing English proceedings on that contract and to restrain vexatious and oppressive litigation abroad, the subject matter of which relates to the underlying contract? In this case the anti-suit injunction is not enforcing a contractual right not to be sued abroad in any sense, whether directly or quasi-contractually.

18.56  In Albon v Naza (No 4), Lightman J held that, in such a case, the claim for an anti-suit injunction was ‘in respect of a contract’, and fell within what is now para 3.1(6) because the (p. 409) anti-suit injunction was ‘in connection with’ the contract.⁸⁶ This is debatable. The claim for an anti-suit injunction was based on equitable principles, and was not enforcing the forum clause. Even if a broad interpretation of PD 6B para 3.1(6) is adopted, and it covers claims ‘connected’ to the contract, it is uncertain whether such an injunction is sufficiently connected to the underlying contract.⁸⁷ And if Tomlinson LJ’s narrower approach to para 3.1(6) is adopted,⁸⁸ and it covers only claims under the contract, then Albon v Naza (No 4) will not be followed.

18.57  In The Lucky Lady, the English arbitration clause in a charterparty was not incorporated into the bill of lading, but it was arguable that the agreement to English law was incorporated. Andrew Smith J, following Tomlinson LJ’s approach, concluded that a claim for an anti-suit injunction against the bill of lading holder, based exclusively on ‘vexation or oppression’, did not fall within para 3.1(6) because no contractual right was asserted to justify the injunction (although Albon was not cited). This has been the approach in other recent authorities.⁸⁹

18.58  However, such limitations may not matter much in practice. Provided there is English litigation on the merits, it is possible to obtain jurisdiction for an interim anti-suit injunction to protect the English litigation under the ancillary jurisdiction, even if there is no jurisdiction under PD 6B para 3.1 to serve a final anti-suit injunction out of the jurisdiction, and that is what happened in The Golden Endurance.⁹⁰ This is discussed in section D, ‘Service Out of the Jurisdiction’. In addition, para 3.1(4A) may provide a relevant basis for a claim for a final injunction, on the basis that the injunction is sufficiently closely connected to the underlying claim on the merits, although this is yet to be determined.⁹¹

18.59  PD 6B para 3.1(7), which covers claims ‘in respect of a breach of contract committed within the jurisdiction’ will not normally apply to injunctions to restrain the pursuit of proceedings abroad. Where an injunction defendant breaches an English exclusive jurisdiction clause by litigating abroad, his breach of contract will take place abroad.⁹²

18.60  PD 6B para 3.1(8), which covers claims for declarations that no contract exists, is not directly applicable to anti-suit injunctions.

18.61  PD 6B para 3.1(9) permits service out of the jurisdiction where ‘a claim is made in tort’ and either ‘the damage was sustained within the jurisdiction’ or the damage ‘resulted from an act committed within the jurisdiction’.

18.62  Non-contractual anti-suit injunctions have historically been based on equity, not tort, and it is unlikely that tortious rights and duties will prove to be a productive basis for claims for anti-suit injunctions in most cases.⁹³ In addition, in AMT v Marzillier the Supreme Court concluded, in respect of a claim for damages for inducing a breach of a jurisdiction clause by inducing the party bound by the clause to sue in a foreign court, that the place where the harmful event occurred was in the foreign court, not England, for the purpose of Article 7(3) of the Recast. The same reasoning is likely to apply to para 3.1(9). Consequently, absent special facts, this gateway is unlikely to support jurisdiction in England for an anti-suit injunction based on tort.⁹⁴

18.63  PD 6B para 3.1(13) permits service out of the jurisdiction where ‘A claim is made for any remedy which might be obtained in proceedings for the administration of the estate of a person who died domiciled within the jurisdiction’. This is arguably broad enough to cover an anti-suit injunction to restrain foreign proceedings that might interfere with that administration, because of the words ‘any remedy’. On the other hand, it might be said that the provision is focused only on the substantive remedies in the administration proceedings. If it does cover anti-suit injunctions, its breadth is merely an accident of language, as illustrated, for example, by the comparison to the trust heads of jurisdiction. In the circumstances, if it does cover anti-suit injunctions, it would probably only be used with some caution.

18.64  PD 6B para 3.1(20)(a) allows permission to serve out of the jurisdiction if ‘A claim is made– (a) under any enactment which allows proceedings to be brought and those proceedings are not covered by any of the other grounds referred to in this paragraph’. The reference to ‘any enactment which allows proceedings to be brought’ is more open than the corresponding wording in CPR 6.20(18), which like its predecessor in RSC Order 11(1)(o)–(s) and (u), permitted service out of the jurisdiction if a claim was made under one of a list of miscellaneous (p. 411) specified statutes, such as the Nuclear Installations Act 1965, and the Financial Services and Markets Act 2000.

18.65  This new wording poses an important question. Was it intended to create a general jurisdictional head for claims based on statute, extending beyond service of claims under the previous rag-bag of miscellaneous enactments—which were of relatively little importance in civil litigation? If so, what kinds of statutory claims are intended to be covered?

18.66  In AES Ust-Kamenogorsk, Burton J held that para 3.1(20)(a) was an ‘obvious catch-all clause’ and there was ‘no connection’ between it and the previous provisions that had operated by way of list. Consequently, a claim for an anti-suit injunction under Senior Courts Act 1981 section 37(1) was a claim under ‘an enactment’ which could fall under para 3.1(20)(a).⁹⁵ Since anti-suit injunctions are always, or at least can always be, based on section 37(1),⁹⁶ this decision would have meant, if correct, that the court would always have a gateway to permit service of claims for anti-suit injunctions out of the jurisdiction. Either they would come within one of the other heads of PD para 3.1, or they would fall within para 3.1(20)(a). However, on appeal the Court of Appeal disagreed. The majority (Wilson LJ and Burnton LJ) concluded obiter that section 37 of the Senior Courts Act did not fall within para 3.1(20)(a); and although Rix LJ did not decide the point, he concluded that there was a ‘serious argument’ that this was the case.⁹⁷

18.67  The reasoning was terse (on this point). Burnton LJ’s logic was that section 37 was not ‘an enactment which allows proceedings to be brought’. But this was because section 37 ‘confers a power to grant injunctions in proceedings properly within the jurisdiction’, which reads strangely, as section 37 covers final injunctions. Rix LJ’s reasoning was that section 37 merely allows for a particular remedy within proceedings whose legal basis has to be found elsewhere; but this is in tension with the many cases that hold that anti-suit injunctions are granted under section 37, which is therefore not just about remedy: such as Ust-Kamenogorsk in the Supreme Court itself.⁹⁸ The para 3.1(20) point does not appear to have been debated on appeal to the Supreme Court, although Lord Mance commented in passing that ‘leave was in fact obtained under CPR PD 6B, paragraph 3.1(2)’ in what seems to have been a typographical error for para 3.1(20).⁹⁹

18.68  The case law has since become more complex. In the recent decision of Orexim v Mahavir,¹⁰⁰ the Court of Appeal considered whether applications under section 423 of the Insolvency Act 1986 could fall within para 3.1(2). They reviewed the law on para 3.1(20) and its predecessors, and contrasted it to the narrower power in CPR 6.33(3), and departing from the narrower previous test set down for the earlier wordings in Re Harrods,¹⁰¹ concluded that (p. 412) ‘if, as a matter of construction, the enactment in question allows proceedings to be brought against persons not within England and Wales, then the court has power to allow those proceedings to be served abroad’. They suggested that no restrictions should be implied into the literal wording of the gateway. Applied literally, this reasoning could apply to section 37(1), because there is no doubt that section 37(1) allows, substantively, the grant of injunctions against persons outside the jurisdiction in relation to facts outside the jurisdiction.

18.69  However, Ust-Kamenogorsk was not cited, and the Court of Appeal does not appear to have fully considered all the potential issues relating to the boundaries of para 3.1(20). A test which allowed para 3.1(20) to cater for service out of claims brought under statutes which implicitly envisaged a distinct and additional extraterritorial jurisdiction, but not otherwise, might well have covered section 423 without bringing in section 37(1) by side wind. However, although there are shades of this sort of concept in the Court of Appeal’s reasoning in Orexim (see at [48]), it is not expressly articulated in the test used, at [35], although it might be said that this is what is really meant by ‘allowed’. The true boundaries of Orexim and its effect on section 37(1) are therefore unclear.

18.70  An answer may, however, be found that in the fact that section 37(1) is a sui generis provision of entirely general application, whose historical role was merely to confirm the court’s existing jurisdiction to grant injunctions and declarations, and not to confer a power which did not exist before.¹⁰² The position is different to statutes which create specific powers in circumstances which bring with them specific extraterritorial jurisdiction. Thus, even if anti-suit injunctions are ‘brought’ under section 37(1), it may be correct to say that section 37(1) does not ‘allow them to be brought against persons not within England and Wales’ in the sense which the Court of Appeal had in mind in Orexim; because ‘allow’ appears to convey some sense that the relevant statute not only confirms but also creates the substantive power, and also creates an extraterritorial jurisdiction for that power. A shorter answer (not explored in Ust-Kamenogorsk) might be that since injunctions are specifically catered for by para 3.1(2), they are not ‘proceedings not covered by any of the other grounds referred to in this paragraph’, so that para 3.1(20) is inapplicable. But this would leave outstanding the other oddity that the appointment of receivers, which is covered by section 37(1) but not by any of the specific heads of PD 6B para 3.1, would then remain within para 3.1(20).

18.71  As matters stand, the conclusion in Ust-Kamenogorsk that anti-suit injunctions do not follow within para 3.1(20)(a) has been put in doubt by the unclear ambit of the reasoning in Orexim. But it would be surprising if para 3.1(20) were to create a general head of jurisdiction emancipating anti-suit injunctions from the confines of the other heads of CPR 6.36 and PD 6B para 3.1.

18.72  A number of the heads of jurisdiction in PD 6B para 3.1 clearly have no connection to anti-suit injunctions, because they apply only to claims with specific subject matters.

(p. 413)

• •  PD 6B para 3.1(10) applies to claims to ‘enforce’ a judgment or arbitral award; but an anti-suit injunction is not an enforcement process.

• •  PD 6B para 3.1(11) applies where ‘the whole subject matter of a claim relates to property within the jurisdiction’; an anti-suit injunction primarily relates to litigation.

• •  PD 6B para 3.1(10) applies only to ‘a probate claim’ or ‘a claim for a rectification of a will’. The latter clearly does not, and the former should similarly not, cover anti-suit injunctions.

• •  PD 6B para 3.1(15) applies to claims for a remedy against a defendant as constructive trustee; but the anti-suit injunction’s foundations in equity are not based on trust.

• •  PD 6B para 3.1(16) applies only to claims ‘for restitution’.

• •  PD 6B para 3.1(17) only covers claims by the Commissioners for HM Revenue and Customs relating to duties and taxes.

• •  PD 6B para 3.1(18) covers claims for third-party costs.

• •  PD 6B para 3.1(19) applies only to admiralty claims.

18.73  The court will have jurisdiction to hear any counterclaim which may as a matter of procedure appropriately be heard together with the claimant’s claim, provided it is sufficient connected with the subject matter of the proceedings.¹⁰³ By bringing his claim, the claimant has submitted to the court’s jurisdiction to hear any appropriate counterclaim, even if jurisdiction could not have been obtained over the counterclaim if it brought in separate proceedings.¹⁰⁴ Final anti-suit injunctions can be claimed by counterclaim¹⁰⁵ and so this form of jurisdiction will apply to them. It will generally be unnecessary to obtain permission to serve such claims out of the jurisdiction, since a claimant should in any event have given an address for service within the jurisdiction under CPR 6.23.¹⁰⁶ Permission to serve out of the jurisdiction can also, if necessary, be obtained under the ‘Additional Claims’ head of jurisdiction in PD 6B para 3.1(4), for example if it is necessary to add an additional defendant to the counterclaim.

(p. 414) 18.74  However, in many cases a defendant in such a situation does not trouble with claiming a final anti-suit injunction against a claimant by claim form and instead chooses only to seek anti-suit relief by way of application notice.¹⁰⁷ Jurisdiction will usually be unproblematic in this situation under the court’s ancillary jurisdiction to grant ancillary relief in substantive proceedings over which it already has jurisdiction (which is discussed further in section J, ‘Jurisdiction and Interim Anti-Suit Injunctions’).

18.75  Even if it has been shown that a claim for an anti-suit injunction falls within one of the heads of jurisdiction in PD 6B para 3.1, the injunction claimant must still show that it is proper case for the proceedings to be served out of the jurisdiction, in the discretion of the court, under CPR 6.36 and 6.37.

18.76  In relation to ordinary substantive claims, the central question for the court’s exercise of its discretion is where it is most appropriate for the matter to be tried. But it is an inherent feature of anti-suit injunctions that they should only be granted if the English court has a close interest in the matter.¹⁰⁸ Logically, if there is a good case for an anti-suit injunction on the merits, it will in most circumstances follow that England is the most appropriate jurisdiction for the matter to be tried.¹⁰⁹

18.77  Other separate discretionary factors, such as a failure by the claimant to discharge his duty of full and frank disclosure when applying without notice, or delay, can also affect the court’s discretionary decision as to whether permission for service out of the jurisdiction should be granted or maintained.

18.78  Final injunctions to enforce an arbitration clause providing for arbitration in England can be claimed under Senior Courts Act 1981 section 37(1),¹¹⁰ and can and must be brought by arbitration claim form.¹¹¹ They can be served out of the jurisdiction under CPR 62.5(1)(c),¹¹² which allows proceedings commenced by arbitration claim form to (p. 415) be served out of the jurisdiction where the claimant seeks a remedy, or requires a question to be decided by the court, ‘affecting an arbitration (whether started or not), [or] an arbitration agreement’, and the seat of the arbitration is or will be within the jurisdiction.¹¹³ CPR 62.5(1)(c) is not confined to claims under the Arbitration Act 1996 and so can support injunctions under section 37(1) of the Senior Courts Act.¹¹⁴ It permits service out of the jurisdiction of injunctions to enforce an arbitration clause, because the anti-suit injunction ‘affects’ the arbitration or the arbitration agreement by enforcing the implied negative obligation in the arbitration agreement not to litigate relevant disputes outside arbitration or otherwise protecting the arbitration.¹¹⁵ It has been held to apply in a case where the injunction was sought to prevent a vexatious collateral attack on the arbitration award.¹¹⁶

18.79  The wording of CPR 62.5(1)(c) makes clear that it will apply even where no arbitration has yet been commenced; and the Supreme Court has also held that it will be satisfied even if neither party intends to commence an arbitration, but the injunction claimant wishes to prevent the injunction defendant litigating otherwise than in the agreed arbitration, because the requirement in 62.5(c)(ii) that ‘the seat of the arbitration is or will be within the jurisdiction’ must be read as satisfied if the seat of any arbitration, if any were to be commenced, would be within the jurisdiction.¹¹⁷

18.80  Teare J has held that CPR 62.5(1)(c) applies to give jurisdiction to quasi-contractual claims for an injunction to enforce an arbitration clause against a third party claiming derived rights in the shoes of a party bound by the arbitration clause, as such an injunction ‘affects’ an arbitration or an arbitration agreement. He concluded that insofar as CPR 62.5 requires that the defendant be a party to the arbitration clause, a third party in the (p. 416) quasi-contractual situation is to be treated as a party to the arbitration clause for that purpose.¹¹⁸

18.81  Outside the quasi-contractual situation, there is a broader debate as to whether CPR 62.5(1)(c) can apply to permit service out of the jurisdiction of claims against a third party who is not party to the arbitration clause. In a line of cases flowing from Vale do Rio to The Alexandros T (Cooke J) and capped by Cruz City (Males J), it has been held that CPR 62.5(1)(c) only applies to parties to the arbitration clause. The key rationale of principle is that it is only parties to the arbitration who have agreed to submit themselves to the English jurisdiction for the purposes of CPR 62.5.¹¹⁹ But this is a controversial conclusion, and there are contrary decisions and suggestions in the case law.¹²⁰ Before Cruz City, in BNP Paribas v Russian Machines, Blair J had accepted that there was force in the submission that an anti-suit injunction, claimed against a person not party to the arbitration agreement to prevent them interfering vexatiously with the arbitration, would fall within CPR 62.5(1)(c).¹²¹ Further, in The Yusuf Cepnioglu Teare J concluded, distinguishing Cruz City, that CPR 62.5(1)(c) would apply to third parties in quasi-contractual situations, on the basis that they would be treated as ‘parties’ to the arbitration agreement in a sufficient sense. As a result, he did not need to determine whether Cruz City was right; but his reasoning suggests he might well have doubted its correctness had it been necessary to do so.¹²²

18.82  The debate encapsulated in Cruz City is of particular relevance in relation to the question (parallel to that arising in relation to 3.1(6)(c)) whether CPR 62.5(1)(c) can apply in the ‘inconsistent claims’ situation, where the injunction claimant himself denies that he is party to the contract containing the arbitration clause, but the injunction defendant’s substantive claim, if coherent, is necessarily subject to the clause. In The Alexandros T (discussed at para 18.36) Cooke J held that CPR 62.5(1)(c) could not so apply, with the result that an injunction claimant who denied any contract with the injunction defendant, but who was seeking an injunction to restrain the injunction defendant from acting inconsistently with the arbitration clause in the contract, could not come within CPR 62.5(1)(c).¹²³

(p. 417) 18.83  There is room to doubt whether The Alexandros T is correct, even if Cruz City is right. First, the law accepts that such ‘inconsistent claims’ injunctions are in principle legitimate injunctions akin to quasi-contractual injunctions,¹²⁴ and it would be strange not to have a jurisdictional basis for them. Second, the cases following Vale do Rio and Cruz City concern distinct situations, for example whether a third-party Chabra defendant with nothing to do with the arbitration can be brought within the jurisdiction, as in Cruz City. In none of them was there an argument that the defendant could not deny that he was bound by the clause. Third, in The Yusuf Cepnioglu Teare J was willing to extend the boundaries of CPR 62.5(1)(c), and to treat the third party in a quasi-contractual case as in effect party to the arbitration clause for jurisdictional purposes.¹²⁵ But that quasi-contractual argument is analogous to the logic of the ‘inconsistent claims’ situation, and it could be argued that ‘inconsistent claims’ should also be distinguished from Cruz City. Fourth, in BNP Paribas Blair J saw force in the contention that CPR 62.5(1)(c) could in principle apply broadly as against non-parties.¹²⁶ It is submitted the better view is that in a quasi-contractual ‘inconsistent claims’ situation the injunction defendant should be treated as party to the arbitration agreement for the purpose of CPR 62.5(1)(c), if necessary, or that in any event the injunction against him should be viewed as ‘affecting’ the arbitration agreement. This is, however, subject to how the central case law on CPR 62.5(1)(c) and PD 6B para 3.1(6)(c) continues to evolve. In any event, the case for applying CPR 62.5(1)(c) will be even stronger where, although the claimant denies there is a contract, the defendant itself alleges that its claims are contractual.¹²⁷

18.84  Furthermore, on the current case law, CPR 62.5 is not the exclusive route for service out of the jurisdiction of ‘arbitration claims’, and consequently final anti-suit injunctions to enforce arbitration clauses can also be served out of the jurisdiction under any heads of PD 6B para 3.1 that are available.¹²⁸ This has important consequences in respect of third parties. The available heads will include PD 6B para 3.1(6)(c), permitting service out in respect of a contract governed by English law, as an arbitration clause providing for arbitration in England will be such a contract, although the breadth of that head is subject to debate.¹²⁹ In addition, in Joint Stock v BNP Paribas it was held that PD 6B para 3.1(3) was capable of justifying service out of a vexation-based anti-suit injunction against a defendant who was not party to the arbitration clause, but who was said to be acting in concert with the party subject to the arbitration clause in order to procure determination of the matters submitted to arbitration before the Russian courts, in an allegedly vexatious manner.¹³⁰

(p. 418) 18.85  The use of para 3.1(6)(c) and (d) provides another way of dealing with quasi-contractual situations, including potentially the case of ‘inconsistent claims’.¹³¹ And para 3.1(3) creates a broad power to bring in third parties in other cases where the third party is not subject to the arbitration clause, where there is an ‘anchor’ claim for an injunction against the party subject to the arbitration clause.

18.86  The effect of the current case law is a patchwork, as the results produced by CPR para 3.1 go beyond the boundaries of CPR 62.5 as interpreted in Cruz City (at least so far as regards third parties who are not bound by any form of quasi-contractual reasoning), and the logic of Cruz City’s restrictive approach to CPR 62.5 has not been reconciled with the broad operation of CPR para 3.1. The whole area would benefit from a comprehensive reconsideration.

18.87  Finally, it appears that where the court has power to serve an arbitration claim form out of the jurisdiction under CPR 62.5, the exercise of its discretion will be governed by similar discretionary considerations as those that apply under CPR 6.36 and 6.37.¹³²

18.88  This section considers the court’s scope of the court’s jurisdiction over applications for interim anti-suit injunctions under the common law rules.

18.89  The rules relating to jurisdiction over interim applications and ancillary documents have not been the Rules Committee’s finest hour; they have been through various iterations, whose incomplete drafting has caused the courts to engage in some contortions to make the rules work. But the end result appears to be fairly clear and workable.

18.90  If the court has jurisdiction over the substance under the Brussels–Lugano regime (so long as it remains the law), then ancillary documents, including applications for interim anti-suit injunctions, can be served out of the jurisdiction on parties to the substantive proceedings. This follows as an ancillary jurisdiction derived from the court’s primary Brussels–Lugano jurisdiction over the substance.¹³³ The machinery of service will be provided by CPR 6.33, together with 6.2, and/or by implication from 6.38(1).¹³⁴

18.91  The position is parallel under the common law rules. If the court has jurisdiction over the substance, it will in principle have jurisdiction over ancillary matters, including interim anti-suit injunctions to protect the substantive proceedings.¹³⁵

(p. 419) 18.92  This common law ancillary jurisdiction is matched by the court’s powers to permit service out of the jurisdiction. First, if the court has given permission to serve the underlying claim form out of the jurisdiction, there is power to give permission to serve ancillary documents out of the jurisdiction under CPR 6.37(5)(b)(ii) and CPR 6.38, and this power includes applications for interim anti-suit injunctions.¹³⁶ Second, once proceedings are underway, it should in general be possible to serve applications on the address for service required under CPR 6.23. Third, if permission to serve the claim form out of the jurisdiction has not yet been granted, it will be possible to serve an interim anti-suit application out of the jurisdiction under the combination of CPR 6.2(c) and CPR 6.36, provided the application can be fitted independently within the heads of jurisdiction in PD 6B para 3.1.¹³⁷ Fourth, if the injunction respondent is present in the jurisdiction, he can be served under the domestic rules of service in Part 6. Finally, if other service machinery is not available for any specific reason, but ancillary jurisdiction exists in principle, it should be possible to use alternative service under CPR 6.15 to fill any lacuna.

18.93  The Hague Convention on the Choice of Court makes clear that it does not confer or affect interim measures of protection (see Art 7). It is highly likely therefore, that if the court has substantive jurisdiction under the Hague Convention (but Brussels–Lugano jurisdiction does not apply), it will also have a parallel ancillary jurisdiction under the common law, including jurisdiction to grant interim anti-suit injunctions. In any event, it would not be difficult to fit such jurisdiction within other heads of jurisdiction, as the interim relief would be protecting a contractual choice of English jurisdiction.

18.94  In addition to the ancillary jurisdiction, it should be possible to obtain jurisdiction for interim relief, and serve application notices in existing proceedings out of the jurisdiction, provided that the application can be fitted independently within the heads of jurisdiction in PD 6B para 3.1. But the growing recognition of the ancillary jurisdiction in principle means that this should now generally merely form part of the machinery of service.

18.95  If the injunction respondent is present in England, then jurisdiction can be obtained by service on him here.

18.96  If an attempt is made to seek a free-standing interim injunction, and assuming this is possible as a matter of basic substantive and procedural law,¹³⁸ it should be possible in principle to obtain jurisdiction under CPR 6.36, or 6.36 combined with 6.2(c), provided that the application (whether sought by claim form or application notice) can be fitted independently within the heads of jurisdiction in PD 6B para 3.1.

18.97  It seems that the common law ancillary jurisdiction, being derived from the court’s jurisdiction over the parties to litigation before it, does not, or does not automatically, give jurisdiction over third parties. The logic of Masri (No 4) is that no such ancillary jurisdiction towards third parties can be derived from CPR 6.38(1) or CPR 6.37(5)(b)(ii).¹³⁹ Thus, jurisdiction over an interim injunction against a third party would seem to require an independent jurisdictional basis. For example, service out of the interim injunction against the third party could be justified if the injunction application against him could in itself be independently fitted within the heads of jurisdiction in CPR PD 6B para 3.1. The necessary and proper party head in PD 6B 3.1(3) may provide a solution in some cases.

18.98  CPR PD 6B para 3.1(5), provides a specific, and exclusive,¹⁴⁰ jurisdictional head for claims for interim relief in support of proceedings in a foreign court made under section 25(1) of the (p. 421) Civil Jurisdiction and Judgments Act 1982. If an interim anti-suit injunction can be credibly applied for under section 25(1), then there is no reason why 6B para 3.1(5) should not apply to give jurisdiction. However, as a matter of substantive law, comity is likely to discourage the grant of anti-suit injunctions in support of foreign proceedings.¹⁴¹ It may be that such applications have to be made by claim form rather than freestanding application notice.¹⁴²

18.99  Interim anti-suit injunctions to enforce arbitration clauses can applied for under section 37(1) of the Senior Courts Act 1981. It used to be thought that interim anti-suit injunctions to enforce arbitration clauses could also be applied for under section 44 of the Arbitration Act 1996. However, the Supreme Court has now held that section 44 does not apply to anti-suit injunctions at all, as such anti-suit injunctions are not sought ‘for the purposes of and in relation to arbitral proceedings’.¹⁴³ Where such an interim injunction is sought within proceedings for a final injunction, it can be sought by interim application notice in the context of an arbitration claim form seeking a final injunction. But if there is no claim for final relief, such interim applications must be sought within the arbitration claim form, or possibly by a combination of an arbitration claim form seeking the interim relief and a parallel interim application notice.¹⁴⁴

18.100  CPR 62.5(1)(c) gives power to permit service out of the jurisdiction of such an arbitration claim form seeking an interim anti-suit injunction, provided that the seat of the arbitration is or will be in England, or there is a sufficiently close connection with England and Wales for the purposes of Arbitration Act 1996 section 2(4). In addition, in respect of an arbitration clause governed by English law, the arbitration claim form can be served out of the jurisdiction under CPR 6.36 and PD 3.1(6)(c). Other heads of PD 6B para 3.1 may also be appropriate in particular cases, such as PD para 3.1(3) for necessary and proper parties. The scope and limits of CPR 62.5 and PD 6B para 3.1 with regard to injunctions, for example with respect to third parties, are discussed earlier in this chapter.

18.101  If service out of the jurisdiction of the arbitration claim form has not yet been permitted, then by virtue of CPR 6.2(c) the same heads of jurisdiction under CPR 6.36 and PD 3B para 3.1 can apply to justify service of an application notice for an interim injunction in support of the arbitration, if and to the extent they are applicable to the relief sought, as discussed above.

18.102  Further, if permission to serve an arbitration clause form out of the jurisdiction seeking a final (or interim) anti-suit injunction in support of arbitration has been obtained, then it would seem that an application notice for an injunction seeking an interim anti-suit injunction paralleling the final injunction sought, or more generally in the context of the claim for a final injunction, can be served out of the jurisdiction as an application notice within the existing action, under CPR 6.37(5)(2)(b)(ii).(p. 422)