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Oxford Law Citator

3 Power, Nature, and Form

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

(p. 53) 3 Power, Nature, and Form

A. The Power to Grant Injunctions

3.01 The terms ‘power’ and ‘jurisdiction’ are difficult, and are abused interchangeably. In this work, power will be used to describe the scope of things a court can do, and in particular the extent of the remedies a court may grant, in claims which it is able to hear, assuming there are no relevant limits on the court’s jurisdiction. In contrast, jurisdiction will be used to describe territorial jurisdiction, namely the limits on the court’s ability to hear claims which are defined by reference to the degree of connection which those claims have with England and Wales. This section addresses power, not jurisdiction.¹

3.02 In the High Court,² final injunctions in ordinary private law litigation are granted (in general) under section 37(1) of the Senior Courts Act 1981,³ which restates and confirms the (p. 54) powers of the pre-Judicature Act courts to grant injunctions,⁴ and provides ‘The High Court may by order (whether interlocutory or final) grant an injunction … in all cases in which it appears to the court to be just and convenient to do so.’

Although recourse sometimes has been made to the inherent jurisdiction of the court as a basis for injunctions,⁵ this is unnecessary in ordinary private law litigation, and would be a needless complication, since any inherent jurisdiction is unlikely to be wider than section 37(1).⁶ There are some other specific statutory powers under which injunctions can be granted,⁷ but they are not of general importance, and with the exception of powers relating to arbitration,⁸ have been of little relevance to anti-suit injunctions. We come, therefore, to the thorny subject of what, if any, limitations are imposed on the general power in section 37(1).

(p. 55) 3.03 It used to be the law, in a line of authority starting with North London Railway,⁹ and restored to prominence by The Siskina,¹⁰ that in ordinary private law litigation,¹¹ a final injunction could only be granted under section 37(1) Senior Courts Act 1981 to protect or enforce a legal or equitable right or duty for the enforcement of which the defendant is amenable to the jurisdiction of the court, except in certain exceptional cases.

3.04 This doctrine posed questions for non-contractual anti-suit injunctions, for which identification of the relevant right is problematic. Relying, as was sometimes done in respect of freezing injunctions,¹² on the rights being claimed in the underlying dispute would not always work for anti-suit injunctions since a defendant might not have any claim based on any underlying legal or equitable rights, but could still need protection against vexatious litigation elsewhere, and in some cases single forum injunctions are sought independent of any underlying claims. The case law upheld the legitimacy of such anti-suit injunctions; but was ambivalent as to whether they were enforcing an equitable right or were one of the exceptional categories where a right was not required.¹³

3.05 However, the North London Railway doctrine (we may also call it the substantive doctrine in The Siskina) was subject to extensive criticism,¹⁴ and in Fourie v Le Roux, the (p. 56) House of Lords concluded that, provided that the court has in personam jurisdiction over the injunction defendant, section 37(1) gives the court the power to grant any final or interlocutory injunction, without any precondition that it must protect or enforce a legal or equitable right.¹⁵ The House of Lords maintained that the court will not ‘normally’ grant an injunction save to protect or enforce a legal or equitable right,¹⁶ but this is a limitation of principle and practice, which can be departed from, not a constraint on the court’s powers.¹⁷ For a time, this aspect of Fourie v Le Roux seemed to have escaped general notice, and some decisions persisted in following North London Railway;¹⁸ but others did follow the Fourie approach.¹⁹ In the recent case law, such as Cartier v BskyB, the Fourie analysis has become embedded.²⁰ Nevertheless, it remains the case under Fourie that as a matter of a practice and principle a legal or equitable right is generally required, and in its absence there are considerable barriers in the way of the grant of an injunction.²¹

3.06 Yet for our purposes, the practical result of these historically complicated developments is now for the most part simple, so far as concerns the power to grant anti-suit injunctions. Irrespective of whether anti-suit injunctions are justified by a correlative underlying legal or equitable right (a question that remains subject to debate²²), and whether or not any requirement for a legal and equitable right is a question of power, or principle or practice, anti-suit injunctions are one of the established exceptions to any such requirements in the light of the House of Lords’ decision in South Carolina,²³ and can be and are granted under section 37(1) of the Senior Courts Act 1981.²⁴ Further, it appears that anti-suit injunctions (p. 57) are granted under the court’s statutory powers, and thus in general practice under section 37(1), and there is no need to deploy the inherent jurisdiction of the court.²⁵

In principle, other statutory powers could also support an anti-suit injunction, but section 37(1) is the only power that is used by the High Court in the modern case law to restrain foreign proceedings.²⁶ It was previously thought that anti-suit injunctions to protect arbitration clauses could be granted under section 44 of the Arbitration Act 1996, but the Supreme Court has recently confirmed that both final and interim injunctions to protect arbitration proceedings are granted under section 37(1), and that interim injunctions to protect arbitration cannot be granted under section 44 of the Arbitration Act 1996.²⁷

(p. 58) 3.07 No limit has been identified to the types of the foreign proceedings which may be affected by anti-suit injunctions. Injunctions have been granted to restrain the pursuit of ordinary civil proceedings, insolvency proceedings,²⁸ arbitrations, freezing injunctions and attachment proceedings,²⁹ and ship arrest proceedings.³⁰ There are, however, no cases where foreign criminal or public law proceedings have been restrained by the English courts, and any attempt to do so would raise serious concerns as to whether the grant of an injunction would be consistent with comity.³¹

3.08 The power to grant anti-suit injunctions under section 37(1) has not been removed by Article 6 of the European Convention on Human Rights, as the right of access to a court does not necessitate an unfettered choice of court, and any limitations on access to a court imposed by anti-suit injunctions are arguably justifiable. However, it is arguable that Article 6 should affect the exercise of the court’s discretion to grant anti-suit injunctions and it is possible that it may exercise a material constraint on the grant of injunctions in certain situations, in particular in single forum cases.³²

B. A Legal or Equitable Right?

3.09 There has been considerable debate as to whether anti-suit injunctions are in all cases granted to enforce a legal or equitable right, and the issue is not yet settled. A detailed analysis is found in the Court of Appeal’s decision in Masri, where it was concluded that ‘alternative forum’ injunctions did not need to enforce a legal or equitable right, but that, as a matter of precedent, free-standing ‘single forum’ injunctions were based on an equitable right.³³

3.10 There is no doubt that in some cases, anti-suit injunctions do enforce specific legal or equitable rights. There is a legal right to enforce a valid contractual forum clause governed by (p. 59) English law, and this contractual right underpins contractual anti-suit injunctions;³⁴ and similarly quasi-contractual injunctions which prevent evasion of contractual forum clauses by third parties claiming derived rights are often viewed as based on equitable rights to enforce the clause.³⁵ But when one turns to non-contractual injunctions, it is difficult to identify relevant underlying legal rights. The possibility of relying on tortious legal rights to justify non-contractual anti-suit injunctions has not been pursued with enthusiasm,³⁶ and it is likely that any attempt to do so would be futile in most cases, because of the limited scope of the relevant torts.³⁷ Choice of law considerations could pose serious problems for any attempts to use a tortious basis, since it is arguable that the applicable law would be the law of the country of the litigation.³⁸ Consequently, if there is a substantive right which underpins the full breadth of the power to grant non-contractual anti-suit injunctions, it must be an equitable right.

3.11 There are some specific equitable rights which can support anti-suit injunctions in particular cases, such as the equitable right to require an assignee of a contract to comply with an exclusive jurisdiction clause in that contract when enforcing his assigned rights,³⁹ and the case law so far has taken the approach that there is generally an equitable right to enforce the forum clause against the third party in ‘quasi-contractual’ cases.⁴⁰ The Privy Council has also concluded that there is an equitable right to a fair distribution of assets in insolvency which can justify an anti-suit injunction to restrain litigation that would interfere with that distribution.⁴¹ But again these specific rights are not sufficiently broad to support the vast bulk of the cases where non-contractual anti-suit injunctions are granted. In particular they will not apply in many of the situations where the foreign proceedings are restrained on the grounds that they are vexatious or oppressive or unconscionable; or where the injunction protects the jurisdiction of the English court.

(p. 60) 3.12 The question is whether the courts should hold that there is a general substantive underlying equitable right not to be subjected to vexatious, oppressive, or unconscionable litigation elsewhere which can justify the full breadth of exercise of the power to grant non-contractual, and quasi-contractual, anti-suit injunctions.

3.13 On the one hand, anti-suit injunctions remain equitable remedies even though now granted under statutory powers.⁴² Before the Judicature Acts 1873–75 they were granted in equity. The presumption that you cannot have a substantive remedy without an underlying right has intuitive attractions;⁴³ and is a comfortable corollary to the general principle that where you have a right you should have a remedy (‘Ubi ius, ibi remedium’).⁴⁴ It is arguable, therefore, that in order for equity to grant a non-contractual anti-suit injunction outside the cases of a defined specific equity it must be responding to a substantive equitable right not to be subjected to vexatious and oppressive or unconscionable litigation. This analysis has considerable support in precedent, both in the old Chancery authorities⁴⁵ and in more modern decisions, not least the House of Lords’ decision in Laker.⁴⁶

(p. 61) 3.14 This result has been given particular impetus in respect of final injunctions claimed as independent free-standing claims for final relief, because of the procedural doctrine⁴⁷ reflected in The Siskina, according to which (a) a claim form seeking a final injunction must claim for a substantive cause of action⁴⁸ over which the court has territorial jurisdiction; but (b) such a cause of action for a final injunction can only exist if it enforces an underlying legal or equitable right over which the court has jurisdiction; and (c) a ‘right to an injunction’ is insufficient without more, and cannot stand on its own.⁴⁹ But while limb (a) is a sound proposition (leaving aside some exceptional cases), because a cause of action is by definition what must be pleaded in order to make out a valid claim for relief,⁵⁰ limbs (b) and (c) are contestable (as will be discussed at paras 3.15, 3.24–3.26, and 3.30–3.31 below).

3.15 On the other hand, there is a forceful argument, supported by the House of Lords in South Carolina, that although the court may be exercising an equitable power when granting an anti-suit injunction to restrain vexatious or oppressive litigation, it is not necessarily doing so to protect any substantive equitable right, but is merely using its powers to respond to vexatious or oppressive conduct, or conduct that interferes with the court’s jurisdiction, processes, and judgments, or is otherwise conduct that it is in the interests of justice to restrain. Since independent of the court’s practice of granting anti-suit injunctions there is (p. 62) no identifiable basis for a general substantive equitable right, it is circular to invent retrospectively a notional equitable right to fit the situations where the remedy will be granted.⁵¹ It is arguable that provided that a fact pattern is accepted as justifying a cause of action for an injunction, it is not necessary to identify any distinct underlying right.⁵² There are other cases where substantive relief will be granted without an underlying private law right, such as the court’s power to enforce public rights, including the criminal law, at the suit of the Attorney General.⁵³ Any such ‘right’ would also become artificial and polymorphous: since the conditions in the case law are more complicated than simply allowing that vexation or oppression or unconscionability are necessary and sufficient, it would be difficult to articulate the equitable ‘right’ which underlies an injunction granted to protect the jurisdiction of the English court.⁵⁴ As Lawrence Collins LJ (as he then was) explained in Masri,

(p. 63)

there can be no objection to the expression ‘right not to be sued’ if the word ‘right’ is used in the same sense as it is in, for example, ‘right to obtain disclosure’. The right not to be sued may involve a correlative duty, but it does not necessarily require a separate claim or cause of action any more than the right to obtain disclosure inter partes. In my judgment, on analysis those judges who have spoken, in alternative forum cases, of a right not to be sued, have not been indicating that there need be a separate cause of action, legal or equitable, but have simply been using the word ‘right’ in the sense of the thing which gives rise to a remedy.⁵⁵

3.16 Applying this reasoning, Lawrence Collins LJ held in Masri that in ‘alternative forum’ cases, in the light of South Carolina, it was not necessary to establish a substantive equitable right to underpin an anti-suit injunction. Such injunctions could be claimed as mere ancillary remedies in existing litigation. However, in ‘single forum’ cases, he appeared to accept that, in the light of The Siskina and Laker, as a matter of precedent (although not necessarily principle), the anti-suit injunction would still require, and be based upon, a substantive equitable right not to be sued abroad, founding a separate cause of action.⁵⁶ It was by this distinction between ‘alternative forum’ and ‘single forum’ cases that he managed to achieve a partial reconciliation of the clashing authorities.

3.17 However, there are difficulties with Lawrence Collins LJ’s analysis, and it cannot be regarded as the last word. The issue before him was the unusual question of whether it was necessary to make a separate claim, and establish separate territorial jurisdiction, for a post-judgment anti-suit injunction. This could have been resolved in a narrower way, on the basis that an interim anti-suit injunction, ancillary to existing proceedings, did not procedurally or jurisdictionally require a separate claim, whether or not there was an underlying equitable right not to be sued abroad.

3.18 As matter of legal history, the distinction between ‘alternative forum’ and ‘single forum’ cases does not really reflect the previous authorities: in Laker the requirement of a right was conceived as being general and applying in alternative forum cases as well as single forum cases;⁵⁷ and the history of the remedy includes numerous cases where an equitable right was thought to exist in alternative forum situations.⁵⁸ Conversely, when in South Carolina the House of Lords held there was no underlying equitable right, their reasoning was not confined to ‘alternative forum’ cases.

3.19 Further, the distinction between ‘alternative forum’ and ‘single forum’ cases does not work as a neat dividing line. An alternative forum injunction is granted where litigation could proceed in two different fora; a single forum injunction is sought where the claim in question could only proceed in the forum where the targeted litigation is brought.⁵⁹ (p. 64) But the difference is not always clear cut, for example where the claim that can be pursued in the other forum is similar but not quite the same. More importantly, an equity, if it exists, cannot coherently be confined to single forum situations. If vexatious conduct can contravene a substantive equitable right in a single forum case, it is difficult to see why conduct that is just as vexatious in alternative forum cases would not also contravene an equitable right.

3.20 In distinguishing ‘single forum’ cases, Lawrence Collins LJ appears to have been motivated by the difficulties of precedent, in the light of the procedural doctrine in The Siskina, of having an injunction without underlying English litigation to claim for a substantive cause of action to enforce a legal or equitable right.⁶⁰ But that problem does not neatly match up the distinction between ‘alternative forum’ and ‘single forum’ cases: it is possible to have an alternative forum situation where no litigation has been brought in England at all, but it could be. Conversely, it is also possible to claim for a ‘single forum’ injunction in the context of existing English proceedings if it is said that a related claim abroad should be restrained. So, to the extent that the procedural doctrine in The Siskina does continue to present a problem (we will return to this) it may be that Masri should be reframed as saying that an equitable right is required, and exists, only in relation to free-standing final claims for injunctions, as opposed to ancillary interim injunctions brought in the context of extant substantive proceedings. Yet it is difficult, again, to see why the underlying equitable rights should be different in the two situations, which may be identical so far as the conduct abroad is concerned.

3.21 If the question of principle was neutral in its consequences, and untrammelled by precedent, there would be much to be said for applying Occam’s Razor,⁶¹ and not inventing an artificial substantive right. Or it could be said that there should be a right only in the limited sense mentioned in Masri, that is a right to an injunction in the conditions identified by the case law, and not any more concrete underlying right. Seeking to create a more concrete right would be particularly problematic when set alongside the discretion not to grant the injunction.

3.22 But the existence or not of a substantive equitable right is interlinked with other issues of high importance, and cannot be decided in abstract. It interconnects, in particular, with four important questions of precedent and principle: first, whether a claim form for final relief can be issued if it does not claim in respect of any substantive underlying equitable right (the procedural doctrine of The Siskina); second, whether final anti-suit injunctions can be served out of the jurisdiction under the common law rules of territorial jurisdiction; third, whether choice of law rules should apply to anti-suit injunctions, and if so, how; fourth, what if any damages should be available for vexatious or oppressive conduct abroad.

3.23 We now turn to consider how the competing imperatives under each of these topics may be balanced and to sketch a possible solution.

(p. 65) 1. A Free-Standing Claim without a Legal or Equitable Right?

3.24 It is established that, whatever the theoretical analysis, there can be separate, free-standing, claims for final non-contractual anti-suit injunctions to restrain vexatious and oppressive conduct abroad, brought by separate claim form, which enforce a valid cause of action.⁶² But if the procedural doctrine reflected in The Siskina⁶³ remains good law, then this implies that such injunctions must be founded on an underlying equitable right and that a circular right to an injunction is not enough. However, there is a real argument that The Siskina should not be treated as gospel in this regard either.

3.25 It is accepted that a substantial cause of action is (normally) required for a valid claim for final relief by claim form. But it should be possible to have a sufficient substantial cause of action to justify a final anti-suit injunction, and a valid free-standing claim form, even if there is no such separate equitable right. In Mercedes-Benz v Leiduck, the majority of the Privy Council doubted that there could be a valid free-standing claim form for a freezing injunction, and pointed to the conceptual incoherence of obtaining default judgment, or final judgment, on such a claim.⁶⁴ But such problems do not arise in relation to anti-suit injunctions which have no difficulties operating as final relief. In Lord Nicholls’ minority opinion, while affirming that there was a cause of action for an anti-suit injunction which could validly be claimed by claim form for final relief, he pointed out that any underlying right would be ‘elusive’ and ‘circular’. He did not endorse the conclusion that any such right needed to be identified, and observed that if needed it would at most a ‘right not to be sued when that would be unconscionable’.⁶⁵ Similarly, South Carolina’s approach that anti-suit injunctions are an exception to any need for an underlying right under section 37(1) could be regarded as having as a corollary that anti-suit injunctions are also an exception to any parallel procedural requirement.⁶⁶ Indeed, more generally it is arguable that the demise of the (p. 66) substantive doctrine of The Siskina, and of the limits it purported to impose on the power to grant injunctions under section 37(1),⁶⁷ should bring with it a corresponding liberalization of any matching procedural constraints—although given the sui generis nature of anti-suit injunctions, it is not necessary to take that step generally for our present purposes. Consequently, it is submitted that neither procedural principle, nor the need for a cause of action, compel the conclusion that free-standing (or single forum) anti-suit injunctions must be based upon a legal or equitable right. And if any underlying right is required, it may be enough to rely on a right to the injunction itself, as Lawrence Collins LJ envisaged in Masri. The near-circularity involved is benign.

3.26 It must be acknowledged, however, that unravelling the tangled cat’s cradle of precedent which has built up around this issue would not be easy. Lord Diplock’s speech in Laker, although not clear, appears to have qualified this aspect of The Siskina with regard to anti-suit injunctions in terms that preserved the need for a legal or equitable right;⁶⁸ so it would be necessary to regard this aspect of Laker as overtaken by South Carolina, and Fourie v Le Roux, with the help of the minority opinion in Mercedes Benz. But this might not fully work, as South Carolina could be interpreted in a more limited way, as dealing only with the situation of injunctions ancillary to existing proceedings and not free-standing claims, which is how Lawrence Collins LJ appears to have approached it in Masri. Further, the majority opinion in Mercedes-Benz requires, for proceedings to be served out of the jurisdiction under CPR 6.36 and PD 6B, that they be proceedings to ascertain or claim rights; and its logic suggests that proceedings which were not brought to ascertain rights in such a sense would not normally be valid claims for final relief, even if service out was not required. While the majority accepted that anti-suit injunctions were a sui generis exception to the general law for many purposes,⁶⁹ it is not quite as clear that they would have accepted that anti-suit injunctions should be an exception to this principle (the jurisdictional doctrine of The Siskina). In turn, the consequences of the demise of the substantive doctrine of The Siskina for the matching procedural doctrine have not yet been fully worked through in the case law. Consequently, Lawrence Collins LJ’s pragmatic compromise in Masri might be treated for now, as a matter of stare decisis at Court of Appeal level, as requiring a legal or equitable right for a free-standing claim for a final anti-suit injunction, although not for an alternative forum injunction sought in existing English proceedings.⁷⁰

2. The Problem of Territorial Jurisdiction

3.27 The problem in relation to territorial jurisdiction arises because of the opinion of the majority of the Privy Council in Mercedes Benz that in order for proceedings to be served out of the jurisdiction under CPR 6.36 and PD 6B, they must be designed to claim or ascertain substantive rights.⁷¹ Although there is room to doubt that this is really correct under the CPR,⁷² it has been treated as (in general) the law for the present.⁷³ In Amoco, (p. 67) Langley J combined that principle with his conclusion that anti-suit injunctions based on vexation and oppression did not enforce any right, to arrive at the result that such vexation or oppression based injunctions could not be served out of the jurisdiction under CPR 6.36 and PD 6B. But it is suggested that this would be an unwelcome conclusion, and is wrong; it has not generally been followed.⁷⁴ It may be that anti-suit injunctions could be viewed as an exception to the Mercedes-Benz requirement (and the Privy Council were willing to treat anti-suits as a sui generis exception generally). But unless this or some other way is found to escape the result in Amoco, the courts could be driven to accept that there is an underlying equitable right of some sort, to avoid such jurisdictional difficulties.

3. Choice of Law

3.28 Conversely, a significant consideration against concluding that there is an underlying equitable right, or a right that is any more concrete than a ‘right to an injunction’, is that it might open a Pandora’s box of choice of law difficulties. Choice of law for non-contractual obligations is now governed by the Rome II Regulation, and this is likely to apply to certain equitable obligations. The more concrete the underlying right, the more appropriate it would be to apply Rome II, which in contrast does not apply to questions of procedure. But if foreign law were to be applied, however, the practical result would almost certainly be to eliminate or drastically hamper the anti-suit injunction, since the law of the place of the litigation is unlikely to conclude that the action before it is wrongful in a relevant sense.⁷⁵ There are possible readings of Rome II under which English law would still be applied to govern anti-suit injunctions. But as discussed in Chapter 4, it is not guaranteed that the European Court of Justice would agree. In order to avoid losing tutelage over their prodigal child, the English courts may prefer to keep the anti-suit injunction as far as possible from the embrace of European law. One way to achieve this would be eliminate, or minimize, any concrete underlying right.

4. Damages

3.29 The existence of an underlying equitable right is also inextricably bound up with the question of whether there should be a general right to damages for vexatious, or oppressive (or unconscionable) litigation abroad. We submit, later, that this would be a controversial new development.⁷⁶ But the more substantive the underlying right, the more conducive it is to a claim in damages, and vice versa.

(p. 68) 5. Conclusion: A Right or Not?

3.30 The existence of an underlying legal or equitable right is, therefore, not an innocent question. Its resolution will depend on what the courts wish to achieve, how they choose to steer their course between the competing imperatives, and how they resolve the interconnected issues of principle and precedent.

3.31 But it is submitted that an effective resolution as a matter of principle and policy, which steers between many of the reefs of precedent, would be as follows:

(1) It can be said that there is a general right to an anti-suit injunction in the circumstances defined by the case law, which is capable of supporting a cause of action for an injunction, but the right exists to that extent and no more, and there is no general concrete underlying equitable right.
(2) Such a ‘right’ and cause of action can support a claim form for final relief and such a claim form can be served out of the jurisdiction under CPR Part 6 PD 6B.
(3) Given the minimal and near-circular nature of this right, however, it is not necessary to use a classification in terms of rights, where this would be procedurally inappropriate, and so interim injunctions need not be analysed in terms of rights.
(4) Interim anti-suit injunctions can be claimed by application notice, as ancillary relief in existing proceedings, independent of whether a parallel final anti-suit injunction is claimed and irrespective of whether jurisdiction could be obtained over a free-standing claim for an anti-suit injunction.
(5) Any such general ‘right’ is insufficient to support a claim for damages, and whether there is a sufficient equity to support damages claims needs to be addressed separately.
(6) The minimal nature of any such ‘right’ means it is to be classified as procedural for the purposes of choice of law and so it is not necessary to analyse questions of choice of law under the Rome Regulations. (In any event, English law applies.⁷⁷)

C. The Form and Nature of Final Anti-Suit Injunctions

1. Claims for Final Relief Brought by Claim Form

3.32 Final anti-suit injunctions can be and are claimed by claim form, and particulars of claim.⁷⁸ Such claims for final anti-suit injunctions are made in respect of, and to enforce, a cause of action for an injunction, which can be regarded as a substantive cause of action to the extent necessary⁷⁹ (whether or not that cause of action is based on an underlying legal or equitable right). Anti-suit injunctions can also be claimed by application notice in existing proceedings, in particular in ‘alternative forum’ situations.⁸⁰ However, this procedure is generally appropriate for interim injunctions only. It remains the case that even in alternative forum cases, a claim for a final anti-suit injunction can and it seems (at least generally) should⁸¹ (p. 69) be claimed by claim form and particulars of claim, either in a free-standing action or by way of initial claim or amendment in the underlying action on the merits. Further, it seems likely that it must be shown that the court has a distinct jurisdictional basis for such a claim for a final injunction.⁸²

3.33 In Masri, Lawrence Collins LJ gave as examples of claims for final anti-suit injunctions only injunctions to enforce an exclusive forum clause, or single forum injunctions, and suggested obiter that alternative forum injunctions would ‘normally’ be brought by application notice only. However, this is somewhat too narrow (not least as the boundary between single and alternative forum injunctions is not clear cut). It is true that interim alternative forum injunctions will often be brought only by application notice; and it is not necessary for there to be a corresponding claim for a final anti-suit injunction, as the interim anti-suit injunction can be brought ancillary to the underlying proceedings on the merits.⁸³ Nevertheless, final alternative forum injunctions can and have been brought by claim form in a number of cases.⁸⁴ The anti-suit injunction’s ambivalence between interim and final form is one of the distinctive features of the remedy.

3.34 Either a Part 7 or a Part 8 claim form may be used, depending on whether or not the issues are likely to involve substantial contested issues of fact.⁸⁵

3.35 Final injunctions to enforce arbitration clauses must be brought by way of arbitration claim form.⁸⁶

2. Converting an Interim Hearing into a Trial

3.36 A hearing to determine an application for an interim anti-suit injunction can be converted into a trial of a claim for a final injunction, if there are no important disputes of fact, nor any interrelation with other final determinations which would make this course inappropriate,⁸⁷ and provided that the grant of final rather than interim relief is appropriate in the (p. 70) circumstances.⁸⁸ The court will obviously be more willing to abbreviate the normal trial process in this way if both parties consent,⁸⁹ but even if one party objects, the court can and will in its discretion decide matters on a final basis in an appropriate case.⁹⁰ A similar procedural result can be produced through accelerating the hearing of the final claim by appropriate case management.⁹¹

3. Undertakings

3.37 The courts may accept undertakings from the injunction defendant in lieu of an injunction.⁹²

4. Prohibitory and Mandatory Injunctions

3.38 The standard form of anti-suit injunction is prohibitory, restraining the injunction defendant from taking any further steps to pursue the foreign proceedings. However, this may not be enough to ensure that the injunction is practically effective. The foreign action may have a life of its own.⁹³ Consequently, in appropriate cases the court will also grant a mandatory anti-suit injunction requiring the injunction defendant to obtain the equivalent of a stay of the foreign proceedings or even to discontinue them.⁹⁴ Mandatory injunctions have also been granted requiring the injunction defendant to lift an arrest of a ship,⁹⁵ and to release monies attached by order of a foreign court.⁹⁶

3.39 A mandatory anti-suit injunction can be seen as a more invasive form of relief, and there are a number of cases suggesting that a stronger case, and particular reasons, is required (p. 71) to justify it.⁹⁷ There are signs, however, that the courts are moving to a more sophisticated view. It can be artificial to treat the dividing line between mandatory and prohibitory relief in any rigid fashion. A so-called mandatory injunction requiring discontinuance may in truth be no more than the spelling out of the inevitable consequence of a prohibitory injunction preventing continuance of the foreign action. Further, stopping the foreign action may be a cleaner and clearer result than prohibiting it from being pursued and may require less policing. So, it may be that the mere fact that an injunction could be regarded as mandatory should not automatically trigger any different and more demanding regime: the focus should be on whether, in truth, the mandatory relief is more invasive in a way that should demand higher scrutiny.⁹⁸

3.40 However, at least in general, mandatory injunctions should not be granted to force a party to take positive steps to arbitrate or litigate in the chosen forum, as parties are free to elect whether or not to advance a claim at all.⁹⁹

3.41 There may be greater reluctance to grant an interim mandatory anti-suit injunction, unless the hearing is effectively a final hearing, especially if the effect of a mandatory injunction will be irreversible.¹⁰⁰ Nevertheless, interim mandatory injunctions have been granted in appropriate cases.

(p. 72) D. Against Whom May an Anti-Suit Injunction be Granted?

3.42 It is an essential feature of the anti-suit injunction that it is sought and granted against the injunction defendant personally, and does not purport to restrain the foreign court, nor directly to affect the foreign proceedings in themselves.¹⁰¹

3.43 The personal logic of the anti-suit injunction is a necessary condition of the enterprise of reconciling the remedy with the demands of comity. The grant of an injunction against the foreign court itself, even as a secondary defendant, would be obviously unacceptable.¹⁰² The personal logic is not a mere artifice and has important consequences, not least the fact that, in contrast to a stay by the English court of English proceedings, the injunction does not have intrinsic and automatic effect on the proceedings in question.¹⁰³ But notwithstanding its personal logic, there has been growing acceptance that an anti-suit injunction is in effect ‘however disguised and indirect, an interference with the process of justice in the foreign court’,¹⁰⁴ and this recognition has driven the tightening (p. 73) of the constraints imposed on the grant of the injunction by the modern doctrine of comity.¹⁰⁵

3.44 Anti-suit injunctions can be sought against third parties in certain situations. The court has power to grant an injunction to protect an English action even against persons who are not parties to the underlying English action, but are parties to the foreign action.¹⁰⁶ Further, in appropriate situations, it is possible for an anti-suit injunction to be granted to restrain persons who are not formally parties to litigation at all, but who will otherwise assist or procure the formal parties to pursue wrongful proceedings.¹⁰⁷ Thus, in a case where foreign proceedings were brought in the name of a claimant but in reality by subrogated insurers, and the court restrained the nominal claimant from pursuing his action, the court was also willing to grant an anti-suit injunction against the insurers.¹⁰⁸

3.45 However, it would, at least in most conceivable circumstances, be inappropriate to seek to restrain the lawyers acting for the injunction defendant in a foreign jurisdiction, or to seek contempt remedies against them for assisting in breaches of an anti-suit injunction against their client. First, to move from the client to the lawyer appears to be a transgression of the personal logic of the injunction. The foreign lawyers will not themselves be bound by any exclusive forum clause; nor does it follow from the fact their client is acting vexatiously that they are doing so. They will be acting on instructions from their client, and may be bound by their professional duties to their client to pursue the litigation, often as part of their duties to their own home state court. So the injunction would in effect purport to set the English court up as judge of the foreign lawyers’ duties, and their relationship to their home court. Arguably, this would come close to interfering with the foreign court itself. Second, such an injunction would be in tension with comity more generally. The foreign lawyers will not owe any allegiance to the English court, and in general comity suggests (p. 74) that the court should not seek to impose its sovereign authority in respect of the conduct of persons outside the scope of its territorial jurisdiction where they owe no substantive obligation over which the English court has jurisdiction.¹⁰⁹ Third, injunctions against lawyers personally would trample over the veil that normally covers lawyer–client relations in most legal systems.

3.46 The sound instinctive reaction of modern English judges faced with the idea of claims of this nature has with one partial and insubstantial exception, been to reject them out of hand.¹¹⁰ In the US case of SEC v Wang and Lee, where the US first instance court had granted anti-suit injunctions that included injunctions against the primary injunction defendant’s foreign lawyers, the British Government filed a diplomatic note protesting that this was a breach of customary international law and jurisdictional principles of international comity.¹¹¹

3.47 The one partial exception is The Duden, where a previous ex tempore decision of Morison J is recorded in the report of the judgment of Jonathan Hirst QC. It appears the injunction defendants had previously been in breach of a without notice anti-suit injunction, restraining proceedings before the courts of Senegal. Applications were made for contempt and to join the injunction defendants’ French avocats (who had offices in London) as defendants. In obiter oral comments during the course of the earlier ex tempore hearing, Morison J had suggested that there were ‘good grounds for joining the French solicitors who also appear to be in contempt’. But it seems that Morison J’s attention was not drawn to the previous authorities. One specific feature of The Duden was that the French avocats had misrepresented the nature of the anti-suit injunction to the Senegalese judge by apparently suggesting in oral argument before him that ‘the English court holds him in contempt’.¹¹² Irritating though this must have been, it is submitted that as matter of principle, foreign lawyers should be left off the playing field.

E. Contempt

3.48 Breach of an anti-suit injunction is a serious matter and the courts have been willing to commit contemnors to significant sentences of imprisonment.¹¹³

(p. 75) F. Debarred from Defending

3.49 In certain cases, breach of an anti-suit injunction has led the English courts to order that the injunction defendant be debarred from defending the substantive litigation. This can be done by way of the law of contempt, under which the English courts can decline to hear a contemnor, or more usually by an unless order, debarring a defence unless the anti-suit injunction is complied with.¹¹⁴ Debarring the right to defend the merits is a drastic remedy, but the European Court of Justice has accepted that it can, in principle, be a legitimate sanction for breach of court orders, provided it is not disproportionate.¹¹⁵ But its use in relation to anti-suit injunctions is particularly sensitive: it may be that the injunction defendant did not comply with the anti-suit injunction because from the perspective of his own conflicts of law rules, he was not obliged to litigate before the court granting the injunction.(p. 76)

Footnotes:

¹ Jurisdiction, in the sense of territorial jurisdiction, is addressed in Chs 16–18.

² The other main civil courts have parallel statutory powers. First, the County Courts can grant injunctions under County Courts Act 1984, s 38(1) which, subject to exceptions ‘prescribed’ in the County Court Remedies Regulations 2014, SI 2014/982 (as amended), gives to the County Courts the same powers as the High Court. An anti-suit injunction is not prescribed, and so is available in the County Court. In practice it seems that parties use the High Court. In any case, the power granted by s 38(1) County Courts Act 1984 is subject to the same restrictions as s 37(1) Senior Courts Act 1981: Khorasandjian v Bush [1993] QB 727 (CA) 732B–D, 740H–741B; Ali v Westminster City Council [1999] 1 WLR 384 (CA) 388–89. Second, the Court of Appeal, which is also a creature of statute, has the same jurisdiction as the court from which appeal is made: Senior Courts Act 1981, s 15(3). Third, the Supreme Court is yet another statutory creation (in contrast to its predecessor the House of Lords). Section 40 of the Constitutional Reform Act 2005 provides that ‘The Court has power to determine any question necessary to be determined for the purposes if doing justice in an appeal to it under any enactment.’ This would be interpreted as including a power to grant anti-suit injunctions if required. In Grobbelaar v News Group Newspapers [2002] 1 WLR 3024 (HL) [25], [37], [62], it was held that on the hearing of an appeal the House of Lords had inherent power to exercise any power vested in the Court of Appeal.

³ For the authorities showing that (subject to certain defined exceptional cases where the inherent jurisdiction, or other specific statutes, may used) injunctions should be granted under statute and generally under s 37(1) of the Senior Courts Act 1981: see South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 39H; AJ Bekhor v Bilton [1981] 1 QB 923 (CA) 942G–943E; Fourie v Le Roux [2007] 1 WLR 320 (HL), and the further authorities at n 24.

⁴ Section 37(1) is often viewed as conferring the court’s powers to grant injunctions, but as Lord Scott pointed out in Fourie v Le Roux [2007] 1 WLR 320 (HL) [25], in fact s 37(1) of the Senior Courts Act 1981 (like its predecessors, s 25(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 would in any event have had all the powers of the pre-Judicature Act courts to grant injunctions under the continuation provisions of s 19 of the 1981 Act, and its predecessors, s 16 of the 1873 Act and s 18 of the 1925 Act. The Court of Chancery had a general power to grant injunctions where equity demanded this (see I Spry, Equitable Remedies (9th edn, Sweet & Maxwell 2014) 342); and the Common Law courts had also been given broad statutory powers to grant injunctions under s 82 of the Common Law Procedure Act 1854: see L v K [2014] Fam 35 [10]. This aspect of the analysis in Fourie was relied on in L v K [2014] Fam 35 [14]; Cartier International v British Sky Broadcasting [2015] RPC 7 [99], [2017] RPC 3 (CA) [40]–[41] (not addressed in the Supreme Court: [2018] 1 WLR 3259 [5]); and Mezhdunarodniy Promyshlenniy Bank v Pugachev [2016] 1 WLR 160 (CA) [45]–[47]. There is, however, no reason to suggest that the antecedent powers preserved by s 19 of the 1981 Act are any broader than the power restated in s 37(1). In the circumstances, it most convenient to analyse matters in terms of s 37(1) alone. This was how Lord Scott approached the issue in Fourie v Le Roux [2007] 1 WLR 320 (HL) [26]; see also Richards v Richards [1984] AC 174 (HL), 199G; L v K [2014] Fam 35 [14].

⁵ For an example outside ordinary private law litigation, see the restraint of advertisement of abusive winding-up petitions by injunction, which it has been said is done under the inherent jurisdiction: Mann v Goldstein [1968] 1 WLR 1091, 1093H–1094A.

The High Court also has an inherent jurisdiction, derived from the ‘doctrine of necessity’, exercised today by the Family Division, to grant injunctions to protect children, and adults who lack capacity to make their own decisions or are ‘vulnerable’, in the sense that their ability to take decisions for themselves has been compromised: see In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 (CA) 13–18; In re F (Adult: Court’s Jurisdiction) [2001] Fam 38 (CA) 45–47 (in respect of declarations); In re a Local Authority [2004] Fam 96 [86]–[104]; Sheffield City Council v E [2005] Fam 326 [108]; In re L (Vulnerable Adults with Capacity: Court’s Jurisdiction) (No 2) [2013] Fam 1 (CA) [22], [52]–[55]; Re KL (a child) (abduction: habitual residence: inherent jurisdiction) [2014] 1 All ER 999 [28].

There were cases where the Family Division, and the Court of Appeal on appeal from the Family Division, had gone further and suggested that the High Court has an inherent jurisdiction to grant injunctive relief in other situations arising in family law, such as freezing injunctions in support of proceedings for ancillary relief on divorce: see Khreino v Khreino [2000] FCR 80 (CA); ND v KP [2011] EWHC 457 (Fam) [4] (Mostyn J). But the use of the term ‘inherent jurisdiction’ in those decisions may well have been no more than loose phrasing referring to the undoubted existence of power to grant injunctions outside the specific powers in the Matrimonial Causes Act 1973 (in particular under s 37(1) of the Senior Courts Act), and does not represent the law. In the more recent case law the Family Division has disavowed the possibility of any general power to grant injunctions in the inherent jurisdiction which is broader than s 37(1) and has confirmed that the Family Division has no wider powers than the other divisions of the High Court: L v K [2014] 2 WLR 914 [14] (Mostyn J); C v C [2016] Fam Law 20 [97]–[106].

The anti-suit cases which refer to the inherent jurisdiction are discussed at para 3.06 and n 25; as explained there, the anti-suit injunction can be more neatly justified under s 37(1) of the Senior Courts Act 1981.

⁶ See Richards v Richards [1984] AC 174 (HL) 199G; L v K [2014] Fam 35 [14]; C v C [2016] Fam Law 20 [97]–[106].

⁷ See eg the insolvency powers discussed in n 26.

⁸ See para 3.06 and n 27.

⁹ North London Railway v Great Northern Railway (1883) 11 QBD 30 (CA), differing from Beddow v Beddow (1878) 9 Ch D 89, but reaching the same result as Day v Brownrigg (1878) 10 Ch D 294 (CA). The decision in North London Railway was followed grudgingly in Kitts v Moore [1895] 1 QB 253 (CA) 261, 262–63; and then followed in Montgomery v Montgomery [1965] P 46, 50; Thorne v BBC [1967] 1 WLR 1104 (CA) 1109; Duchess of Argyll v Duke of Argyll [1967] Ch 302, 344; Gouriet v Union of Postal Workers [1978] AC 435 (HL) 516A–G, 501D–E; Paton v BPAS Trustees [1979] QB 276, 278–79; Siskina v Distos Compania Naviera (The Siskina) [1979] AC 210 (HL) 256F–H, 257A; Bremer Vulkan Schiffbau Maschinenfabrik v South India Shipping Corp [1981] AC 909, 959, 961 (CA) and 979–980, 992, 994–95 (HL); Chief Constable of Kent v V [1983] QB 34 (CA) 45E, 49D–50B; Richards v Richards [1984] 1 AC 174 (HL) 200B–D; Associated Newspapers v Insert Media [1988] 1 Ch D 509, 514F–515B; Khorasandjian v Bush [1993] QB 727 (CA) 732B–D; Mercedes Benz AG v Leiduck [1996] AC 284 (PC) 301A–D; Ali v Westminster City Council [1999] 1 WLR 384 (CA) 388–89; In re A Local Authority [2004] Fam 96 [66]. See contra Maclaine Watson v ITC (No 2) [1989] 1 Ch 286 (CA) 302G–H to 303A; Worcestershire County Council v Tongue [2004] Ch 236 (CA) 249 [39]–[40]; Department of Social Security v Butler [1995] 1 WLR 1528 (CA) 1532H–1533C.

¹⁰ Siskina v Distos Compania Naviera (The Siskina) [1979] AC 210 (HL) 249F, 256F–H, 257A (although the point was assumed and not decided, and had been conceded).

¹¹ The position was different in public law cases, where no legal or equitable right was required (see Broadmoor Special Hospital Authority v Robinson [2000] QB 775 (CA) [19]–[25], [49]–[50], [55]–[56]); and also possibly in insolvency: see In re Oriental Credit Ltd [1988] Ch 204; Morris v Murjani [1996] 1 WLR 848 (CA) 852D–853 (CA).

¹² See the discussion in Mercedes Benz v Leiduck [1996] AC 284 (PC) 300F–301D.

¹³ Contractual anti-suit injunctions do enforce a legal right, but there has long been debate as to whether this is so for non-contractual anti-suit injunctions in general. In a trilogy of cases decided in the 1980s, the House of Lords decided that final anti-suit injunctions could be reconciled with North London Railway and justified within s 37(1). But there was a difference of approach. In Castanho v Brown & Root [1981] AC 557 (HL) 573 per Lord Scarman, and British Airways Board v Laker Airways [1985] AC 58 (HL) per Lord Diplock at 80H–81G and per Lord Scarman at 95–96, the House of Lords appeared to consider that there was an equitable right not to be subjected to unconscionable litigation abroad which could support a final anti-suit injunction. However, in South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 39–41, Lord Brandon’s view for the majority was that no coherent legal or equitable right could be identified, but that anti-suit injunctions could nevertheless be granted under s 37(1), as an exception to the North London Railway principle. In Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [31], [39]–[59], [99], Lawrence Collins LJ sought to reconcile these cases by concluding that in ‘alternative forum’ cases, no legal or equitable right is required, but in ‘single forum’ cases, such a right may well need to exist. This issue is further discussed in section B, ‘A Legal or Equitable Right?’.

¹⁴ South Carolina Insurance v Assurantie Maatschappij ‘De Zeven Provincien’ [1987] AC 24 (HL) 44G–H (per Lord Goff); Channel Tunnel Group v Balfour Beatty Construction Ltd [1993] AC 334 (HL) 343D–E (per Lord Browne-Wilkinson, with whom Lords Goff and Keith agreed at 340G–341A); and see per Lord Mustill, at 362B–C. In Mercedes Benz v Leiduck [1996] AC 284 (PC), the majority of the Judicial Committee of the Privy Council upheld the jurisdictional doctrine in The Siskina (see n 47 of this chapter; and Ch 18, para 18.16, n 30 and n 32) but expressly avoided expressing any opinion on the ‘substantive’ aspects of The Siskina: at 298A–C, 304F–G; and Lord Nicholls, in his dissenting opinion on the question of jurisdiction, stated that in his opinion the power to grant injunctions should not be confined to rigid categories: at 208C–E.

¹⁵ Fourie v Le Roux [2007] 1 WLR 320 (HL) [30]. Lord Scott used the language ‘jurisdiction in the strict sense’ rather than ‘power’, but he was referring to the court’s power: at [25].

¹⁶ Fourie v Le Roux [2007] 1 WLR 320 (HL) [32].

¹⁷ Cartier International v British Sky Broadcasting [2015] RPC 7 [104] (Arnold J).

¹⁸ The substantive doctrine in The Siskina was treated as still stating the law in this respect in Elektrim v Vivendi (No 2) [2007] 2 Lloyds Rep 8 [55] (Fourie not cited); Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [34]–[38] (Fourie not referred to in the judgment); AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2010] 2 Lloyds Rep 493 (CA) [18]–[20] (Fourie not cited); Law Society v Shah [2015] 1 WLR 2094 [69] (Fourie not cited). See also the acceptance that the injunctive power in s 37(1) is ‘not unfettered’, referring to The Siskina but not Fourie, in the obiter comments in Tasarruf Mevduati Sigorna Fonu v Merrill Lynch Bank & Trust [2012] 1 WLR 720 (SC) [57].

¹⁹ The approach in Fourie was 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 [41]; Revenue and Customs Commissioners v Ali [2012] STC 42 [35]–[38]; Cartier International v British Sky Broadcasting [2015] RPC 7 [94]–[104] (Arnold J); and [2017] RPC 3 (CA) (point not addressed in SC: [2018] 1 WLR 3259 [5]). See also Samsung Electronics (UK) v Apple [2013] FSR 9 (CA) [73]–[74].

²⁰ Cartier International v British Sky Broadcasting [2017] RPC 3 (CA) [42]–[50] (point not addressed in SC [2018] 1 WLR 3259 [5]); Fujifilm Kyowa Kirin Biologics v Abbvie Biotechnology (No 2) [2017] RPC 7 [45]; UTB v Sheffield United [2018] EWHC 1663 [30]–[34].

²¹ See eg C v C [2016] Fam Law 20 [167], [172]; Coates v Octagon Overseas [2017] 4 WLR 91 [21]–[22].

²² See section B, ‘A Legal or Equitable Right?’.

²³ South Carolina Insurance v Assurantie Maatschappij ‘De Zeven Provincien’ [1987] AC 24 (HL) 44G–H (per Lord Goff), applied in Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [47]–[48].

²⁴ For statements that contractual anti-suit injunctions are granted under s 37(1) (even in respect of arbitration clauses), see West Tankers v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL) [10] and AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [48], [55]–[59], among many others. For statements that non-contractual anti-suit injunctions are granted under s 37(1), see South Carolina Insurance v Assurantie Maatschappij ‘De Zeven Provincien’ [1987] AC 24 (HL) 44G–H (per Lord Goff); Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [47]; and generally AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [20], [23], [48], [55]–[59].

²⁵ It has occasionally been suggested that the court’s inherent jurisdiction includes the power to grant anti-suit injunctions: IH Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23, 43–44; The Eras Eil Actions [1995] 1 Lloyds Rep 64, 73–74 (Potter J); Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (Moore Bick J) [23]. But none of the cases cited by Jacob actually support the proposition that anti-suit injunctions are justified under the inherent jurisdiction (as opposed to the separate topic of orders to restrain vexatious litigants: see Ch 6, section G, ‘Orders to Restrain Vexatious Litigants’). All the authorities to which he refers ground the anti-suit injunction in the principles of equity, or s 37(1). Further, with respect, Potter J’s judgment in The Eras Eil Actions may be conflating questions of jurisdiction and power. The problem there was whether the Court could procedurally grant interim anti-suit injunctions, unlimited in time, in the context of the existing action without an independent basis of territorial jurisdiction. This can more conveniently be regarded as a question of the existence and scope of the ‘ancillary jurisdiction’ to grant ancillary relief, which the court has when it has territorial jurisdiction over the merits (see Ch 16, paras 16.18–16.20; Ch 17, section D, ‘Interim Anti-Suit Injunctions’; Ch 18, paras 18.88–18.90), rather than a question of substantive power. Similarly, Moore Bick J’s reasoning in Glencore was understood on appeal by Rix LJ as really concerned with questions of procedure and ancillary territorial jurisdiction. Any substantive inherent jurisdiction was unnecessary: ‘there is no need to find in the inherent jurisdiction of the court the power to grant anti-suit injunctions, which is in any event provided by s 37(1) of the Act’: see Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [60]–[61]. Finally, the obiter comments in Hospira UK v Eli Lilly [2008] EWHC 1862 (Pat) [9], on close reading do not in fact support the proposition that anti-suit injunctions are granted under the inherent jurisdiction.

If it were to turn out in the future that s 37(1) were to impose an unnecessary and artificial constraint on the grant of anti-suit injunctions, then the inherent jurisdiction could be deployed; but as matters stand it is not necessary, and simplicity suggests that anti-suit injunctions should be based on s 37(1).

In Australia, the anti-suit injunction is derived in part from the inherent jurisdiction of the court: CSR v Cigna Insurance Australia (1997) 189 CLR 345 (HC Aus) 391–94; Australian Broadcasting v Lenah Game Meats (2001) 208 CLR 199 (HC Aus) [96]. But the Australian context is different, as there is no general equivalent to s 37(1).

²⁶ Once a winding-up petition has been presented, there is a power under s 126 of the Insolvency Act 1986 (the successor of the 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]–[21], this line of authority was extended to the analogous statutory provisions in respect of administration of companies, which were also held not to grant powers to restrain proceedings outside the UK. A similar approach applies in New Zealand: Commissioner of Inland Revenue v Compudigm International [2010] NZHC 1832 [13]–[14], discussed in Ch 20. It also appears that such powers are to be exercised by interim application rather than final claim: see Ch 13, para 13.23.

Section 25 Civil Jurisdiction and Judgments Act 1982 has not been used to support anti-suit injunctions. This is probably because the English court is unlikely to have sufficient interest to grant an injunction in support of foreign proceedings. See Ch 4, para 4.83; Ch 7, section G, ‘Injunctions in Support of a Foreign Forum’.

²⁷ Ust-Kamenogorsk Hydropower Plant JSC (Appellant) v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] 1 WLR 1889 (SC), followed in Southport Success SA v Tsingshan Holding Group Co Ltd [2015] 2 Lloyds Rep 578 [19]–[25]. It was already clear that final injunctions to enforce an arbitration clause were granted under s 37(1) (Welex v Rosa Maritime Ltd (The Epsilon Rosa) [2003] 2 Lloyds Rep 509 (CA) [34]–[40]; Starlight Shipping Co v Tai Ping Insurance Co (The Alexandros T) [2008] 1 Lloyds Rep 230 [16]–[19]); but in Ust-Kamenogorsk the Supreme Court went further and confirmed that s 37(1) was also the basis of interim injunctions to enforce an arbitration clause. See Ch 13, section B, ‘Power and Nature’.

Injunctions to restrain English arbitrations can be granted under s 72 of the Arbitration Act 1996; but these are not anti-suit injunctions properly so called, but rather part of the court’s supervisory jurisdiction over English arbitrations, and obey different principles: see Ch 11, section A, ‘Introduction’.

²⁸ See Re the North Carolina Estate (1889) 5 TLR 328; Re Vocalion (Foreign) Ltd [1932] 2 Ch 196, 210; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC). This topic is discussed further at Ch 5, section E, ‘Insolvency and Justice Between Creditors’.

²⁹ See eg Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA), where a mandatory injunction was granted requiring the injunction defendant to discharge in part a Rule B attachment obtained in New York.

³⁰ In respect of ship arrest proceedings, see Petromin v Secnav Marine [1995] 1 Lloyds Rep 603, 613–14; OT Africa Line v Hijazy (The Kribi) (No 1) [2001] 1 Lloyds Rep 76 [92]; Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160; Kallang Shipping Panama v Axa Assurances Senegal (The Kallang) (No 2) [2009] 1 Lloyds Rep 124; Sotrade Denizcilik Sanayi Ve Ticaret v Amadou Lo (The Duden) [2009] 1 Lloyds Rep 145. In Mike Trading and Transport v R Pagnan & Fratelli (The Lisboa) [1980] 2 Lloyds Rep 546 (CA) 549, 552, the Court of Appeal would have prepared to grant a mandatory injunction to procure the vessel’s release from arrest had the arrest proceedings been in breach of contract (which they were not). In BSNC Leasing v Sabah Shipyard [2000] 2 MLJ 70 (Malaysia CA) 96–97, a mandatory injunction was granted to require a foreign ship arrest to be lifted.

³¹ In Singh v Singh [2010] FMCafam 949, the Federal Magistrates Court of Australia granted an injunction to restrain a potential complainant from instituting or participating in criminal proceedings in India. This decision has been criticized in S Harder, ‘Recent Judicial Aberrations in Australian Private International Law’ (2012) 19 Aust Intl Law J 161, 162–65.

³² See Ch 1, section E, ‘Human Rights Law’. The English courts have unhesitatingly rejected arguments that Article 6 should limit the grant of anti-suit injunctions: OT Africa Line v Hijazy (The Kribi) [2001] 1 Lloyds Rep 76 [28(9)], [41]–[44]; Mauritius Commercial Bank v Hestia Holdings [2013] 2 Lloyds Rep 121 [43]. The French Courts have agreed that contractual anti-suit injunctions do not, in themselves, unjustifiably restrict access to the court: In Zone Brands, Cass Civ 1 (14 October 2009) No 08-16.369 and No 08-16.549 [2010] Rev Crit DIP (Note H Muir-Watt).

³³ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [31], [39]–[59], [99].

³⁴ Ust-Kamenogorsk Hydropower Plant JSC (Appellant) v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] 1 WLR 1889 (SC) [1], [21]–[24].

³⁵ See eg Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat ve Ticaret (The Yusuf Cepnioglu) [2016] 1 Lloyds Rep 641 (CA) [16]–[33]. The issue is discussed in Ch 10, section C, ‘An Obligation Not to Sue Elsewhere?’.

³⁶ A claim for an anti-suit injunction based on tort was originally advanced in Schiffahrtgesellschaft Detlev von Appen v Voest Alpine Intertrading (The Jay Bola) [1997] 1 Lloyds Rep 179, 183–84, but had been abandoned by the time of the hearing. Such an argument was advanced only indirectly, and not given weight, in Amoco (UK) Exploration v British American Offshore [1999] 2 Lloyds Rep 772, 780. A determined attempt to rely on tort was made in OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19–25], but failed, for choice of law reasons: see Ch 4, paras 4.16, 4.38–4.39. In Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160 [41], Gloster J held that a claim in tort against a third-party insurer for inducing its insured to breach an exclusive jurisdiction clause was arguable; but choice of law issues seem not to have been raised.

In the subsequent decisions in Kallang Shipping Panama v Axa Assurances Senegal (The Kallang) (No 2) [2009] 1 Lloyds Rep 124 [90]–[94] and Sotrade Denizcilik Sanayi Ve Ticaret v Amadou Lo (The Duden) [2009] 1 Lloyds Rep 145 [65]–[68], [90], insurers had manipulated insured cargo interests to bring proceedings in Senegal with the aim of pressuring shipowners to give up their right to arbitrate in London. Cargo interests were awarded damages against insurers on the basis they had wrongfully induced cargo interests’ breach of the arbitration clause. Such a tortious claim would, in principle, be capable of supporting a claim for an anti-suit injunction. However, the judge made a point of observing, in both cases, that it was common ground that English law applied and that no case on Senegalese law was pleaded.

³⁷ See the discussion of possible relevant torts at Ch 4, section E, ‘A Legal or Equitable Right’.

³⁸ Choice of law issues are discussed further at Ch 4, paras 4.38–4.39.

³⁹ See Schiffahrtsgesellschaft Detlev von Appen v Voest Alpine Intertrading (The Jay Bola) [1997] 2 Lloyds Rep 279 (CA) 286. See further Ch 4, paras 4.27–4.31 and Ch 10, section C, ‘An Obligation Not to Sue Elsewhere?’.

⁴⁰ Ch 10, paras 10.14–10.19.

⁴¹ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [22].

⁴² Castanho v Brown & Root (UK) [1981] AC 557 (HL) 573C; British Airways Board v Laker Airways [1985] 1 AC 58 (HL) 80H–81G, 95F–H; Midland Bank v Laker Airways [1986] 1 QB 689 (CA) 711B; Barclays Bank v Homan [1993] BCLC 680, 686–88 (Hoffmann J); Turner v Grovit [2002] 1 WLR 107 (HL) [22]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [18], [22]. Even a contractual anti-suit injunction is an equitable remedy to enforce a contractual right: National Westminster Bank v Utrecht-America Finance [2001] 3 All ER 733 (CA) [73]. Thus, anti-suit injunctions can be refused if the applicant does not have ‘clean hands’: Royal Bank of Scotland v Highland Financial Partners [2012] 2 CLC 109 [174]–[195], [2013] 1 CLC 596 (CA) [158].

(Cases such as South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 39H–41C; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [23]; West Tankers v Ras Riunione Adriatica di Sicurta (The Front Comor) [2007] 1 Lloyds Rep 391 (HL) [8]; and Deutsche Bank v Highland Crusader Offshore Partners [2010] 1 WLR 1023 (CA) [50], use language that is less steeped in equity.)

⁴³ See Gouriet v Union of Post Office Workers [1978] AC 435 (HL) per Lord Diplock at 499G–H, 500C, 501D–G, and also at 508G; Kingdom of Spain v Christie, Manson and Woods [1986] 1 WLR 1120, 1128–1129. However, for a refusal to follow the ‘brocard’, ‘ubi remedium ibi ius’, see Harding v Wealands [2007] 2 AC 1 [76].

Amongst academic writers, Adrian Briggs thinks that such a general equitable right exists: A Briggs, Agreements on Jurisdiction and Choice of Law (OUP 2008) para 6.26; A Briggs, ‘The Unrestrained Reach of an Anti-Suit Injunction: A Pause for Thought’ [1997] LMCLQ 90, 92–93; and A Briggs, Civil Jurisdiction and Judgments (6th edn, Routledge 2015) para 5.99 (hereafter Briggs) (where, however the approach is more cautious). J Harris, ‘Anti-Suit Injunctions—a Home Comfort?’ [1997] LMCLQ 413, 415–16 also thinks that such a substantive equitable right exists, and observes ‘if there is no recognized right, it is hard to see how the applicant should ever be entitled to a remedy’. See TM Yeo, Choice of Law for Equitable Doctrines (OUP 2004) para 4.30 (hereafter ‘Yeo’).

⁴⁴ Ashby v White (1703) 92 ER 126, per Holt CJ: ‘it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal’.

⁴⁵ In Beckford v Kemble (1822) 1 Sim & St 7, 57 ER 3, 7, it was held that an anti-suit injunction would be granted as the applicant had a ‘clear equity to be protected’ (where the equity in question was not linked to any specific equitable defence); see also Liverpool Marine Credit Co v Hunter (1867) LR 4 Eq 62, 70 (where in considering whether to grant an injunction the question was if ‘this species of equity exists’); (1868) LR 3 Ch App 479, 484–87. Care should be taken about some of the older cases, however, as in a number of them the injunction was granted to protect a specific substantive equitable defence which the foreign court might not give effect to (such as an estoppel), which is a different sort of equitable right to that in question here: see eg Lord Portarlington v Soulby (1834) 3 My & Ky 104, 40 ER 40.

⁴⁶ In British Airways Board v Laker Airways [1985] AC 58 (HL) 81B–D, 95D–H, Lords Diplock and Scarman held that there was a legal or equitable right not to be sued in the foreign court if the action of the injunction defendant in suing there was unconscionable (Lord Diplock’s discussion of the extent to which an anti-suit injunction should be viewed as an exception to The Siskina, at 81A–C, is not pellucid; but the best reading of his speech is probably that he was suggesting that the anti-suit injunction should be seen as an exception to the procedural doctrine of The Siskina (see para 3.14 below) and not to the existence of a legal or equitable right). See also Castanho v Brown & Root (UK) [1981] AC 557 (HL) 573. The approach taken in British Airways Board v Laker Airways was followed in Midland Bank v Laker Airways [1986] QB 689 (CA) 712B–G, 715F, and in Compagnie Européene de Céréals v Tradax Export [1986] 2 Lloyds Rep 301, 304–05 an injunction to restrain arbitration proceedings, where (it was said) the arbitrators had no jurisdiction to proceed because the matter was res judicata, was considered to be based on an equitable right. See also Barclays Bank v Homan [1993] BCLC 780, 787, adopting the language of an equitable right not to be sued from Laker.

The firmest modern statements that a substantive general equitable right does exist are contained in the decisions of Aikens J in Donohue v Armco [1999] 2 Lloyds Rep 649 [21] and Youell v Kara Mara Shipping [2000] 2 Lloyds Rep 102 [41]–[45]. On appeal in Donohue v Armco [2000] 1 Lloyds Rep 579 (CA), the majority of the Court of Appeal did not adopt Aikens J’s analysis, but nor did they reject it, although Brooke LJ in the minority did take a different view (at [90]). However, in the House of Lords [2002] 1 Lloyds Rep 425 (HL) 431 [18]–[21], Lord Bingham’s analysis appeared to proceed on the basis that, if there was a good case for a general anti-suit injunction to be granted, then there would be a ‘substantial cause of action’ underpinning the injunction (although on the facts of the case, the foreign proceedings were not vexatious and oppressive). Lord Hobhouse’s speech in Turner v Grovit [2002] 1 WLR 107 (HL) does not directly confront this issue, but there are passages that suggest that he considered that in order for an injunction to be granted, an equitable right would be required: see at 118C–D (although cf also 117C–D). Following those decisions there have been other authorities positively supporting the existence of an underlying substantive equitable right. In Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42], Rix LJ referred to ‘the right, legal or equitable but here equitable, for the protection of which an injunction should be granted’; and see OT Africa Line v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA) [63] and Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160 [20]. In Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [27], Andrew Smith J stated that it was ‘possible to regard’ the right not to be subjected to vexatious proceedings itself as an equitable right, but did not need to decide the point. Finally, in Joint Stock Asset Management Company Ingostrakkh Investments v BNP Paribas [2012] 1 Lloyds Rep (CA) [46], the jurisdictional analysis proceeded on the basis that the claim for injunction, if valid, reflected a right not to be sued. But the abstract question of whether or not an injunction need reflect such a substantive right was not debated.

⁴⁷ This procedural doctrine is different to the substantive doctrine of The Siskina, namely that s 37(1) of the Senior Courts Act only gives and confirms a power to grant injunctions in support of a legal and equitable right. That substantive doctrine is no longer the law, following Fourie v Le Roux [2007] 1 WLR 320: see paras 3.03–3.05. We distinguish also the jurisdictional doctrine of The Siskina (discussed Ch 18, para 18.16, n 30 and n 32), namely that only claims for a cause of action for final substantive relief can be served out of the jurisdiction under CPR PD 6B para 3.1.

⁴⁸ Mercedes-Benz v Leiduck [1996] 1 AC 284 (PC) 310E.

⁴⁹ Siskina v Distos Compania Naviera (The Siskina) [1979] AC 210 (HL) 256C–E, 256G–H. This procedural doctrine in The Siskina, which relates to the preconditions of an independent action, must be distinguished from the substantive North London Railway doctrine, which concerned the powers of the court under s 37(1) Senior Courts Act 1981.

⁵⁰ Mercedes-Benz v Leiduck [1996] 1 AC 284 (PC) 310D–F. A claim form can be struck out for failing to disclose a cause of action: see among many others Gouriet v Union of Post Office Workers [1978] AC 435 (HL) 512F.

However, there are procedurally special cases where a claim form can validly be used to claim for free-standing relief without a cause of action. Examples include Norwich Pharmacal orders; and interim injunctions in support of foreign proceedings under s 25 of the Civil Jurisdiction and Judgments Act 1982, which are generally brought by claim form: see Ch 13, paras 13.33–13.35. Arbitration claim forms are also used to make claims for interim relief, including applications to subpoena witnesses or protect evidence.

⁵¹ In South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40H–41D, Lord Brandon concluded that an anti-suit injunction to restrain unconscionable (or vexatious and oppressive) conduct, as well as an anti-suit injunction to restrain proceedings in an inconvenient forum (mere inconvenience of the foreign forum is now no longer a sufficient justification for anti-suit injunctions without more: see Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [48] and Ch 4, section J, ‘Forum non Conveniens’), was not founded upon a legal or equitable right, as no such general right could be coherently formulated. Properly read, Castanho v Brown & Root [1981] AC 557, 573C–E, does not clearly support any general equitable right. South Carolina was followed in this regard in ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 161, 167; and on appeal [1991] 1 Lloyds Rep 429 (CA), 438–39 (per Mann LJ); see also Neill LJ at 437. See in addition The Eras Eil Actions [1995] 1 Lloyds Rep 64, 70–71, 76, 79; and Associated Newspapers Group v Insert Media [1988] 1 WLR 509, 514H. However, for criticism of Lord Brandon’s approach see A Briggs, ‘The Unrestrained Reach of an Anti-Suit Injunction: A Pause for Thought’ [1997] LMCLQ 90, 92, n 15; J Harris, ‘Anti-Suit Injunctions—a Home Comfort?’ [1997] LMCLQ 413, 415–16.

In Mercedes-Benz v Leiduck [1996] 1 AC 284 (PC) 301D–E, anti-suit injunctions were referred to as ‘sui generis’, and compared to freezing injunctions (which have no underlying cause of action) by Lord Mustill; and Lord Nicholls dissentiens at 310G–H analysed the underlying right as being essentially circular, to the extent it existed at all. In Amoco (UK) Exploration v British American Offshore [1999] 2 Lloyds Rep 772, 780–81, Langley J adopted Lord Mustill’s comment and concluded that a claim for an injunction to restrain vexatious and oppressive conduct ‘is not one which is designed to ascertain substantive rights but designed only to determine in which courts such rights should properly be determined’; he considered that an attempt to formulate an equitable right which underpinned the grant of an injunction did not amount to ‘more than expressing in other terms the fact that an injunction should be granted’. (The knock-on effect according to Langley J was that the court had no jurisdiction under RSC Order 11, r 1(1) to permit service out of the jurisdiction of proceedings for a general anti-suit injunction (but this is a contestable conclusion, for many reasons, which it is submitted does not follow from the absence of an underling right: see n 62 of this chapter, para 3.27, and Ch 18, ‘Can the Common Law Jurisdictional Gateways Apply?’, paras 18.17–18.18. Langley J’s approach to the jurisdictional question was adopted by Brooke LJ (in the minority) in Donohue v Armco [2000] 1 Lloyds Rep 579 (CA) [90], and was referred to without disapproval by Stuart-Smith LJ (see at [52]); but it was not adopted in the House of Lords: Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) 431 [18]–[21]).

In Turner v Grovit [1999] 1 All ER (Comm) 445 [22], at first instance, David Donaldson QC concluded that in an extra-contractual case there was no obligation not to sue in a foreign country (overturned, on other grounds, Turner v Grovit [2000] QB 345 (CA)). Further, there are passages in Lord Hobhouse’s speech in the House of Lords in Turner v Grovit [2002] 1 WLR 107 (HL) which suggest that he required only a ‘legitimate interest’ and not a substantive equitable right (at [24], [27]). In Trafigura Beheer v Kookmin Bank (No 2) [2007] 1 Lloyds Rep 669 [44(iii)], Field J interpreted Lord Hobhouse’s analysis in Turner v Grovit as meaning that ‘Absent an agreement to the exclusive jurisdiction of the court, or some other special factor, a person has no right to be sued in a particular forum’; and the reasoning in Royal Bank of Scotland v Hicks [2011] EWHC 2579 [62] is overall inconsistent with an underlying right.

Finally, in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [22]–[23], it was held that an anti-suit injunction to protect equal distribution of assets on insolvency was justified by an equitable right; but the language used suggests that the Privy Council was distinguishing that situation to injunctions granted to restrain vexatious or oppressive conduct generally, in respect of which it was not suggested that there was any specific equitable right.

⁵² See para 3.25.

⁵³ Gouriet v Union of Post Office Workers [1978] AC 435 (HL) 477–82.

⁵⁴ Take a case where the foreign litigation is vexatious but an injunction should not be granted as a matter of comity. Is there an equitable right which has been infringed, but one in respect of which there should be no injunction? Or is there no right at all?

⁵⁵ At [52]. This was much the same analysis as Lord Nicholls’ in Mercedes Benz v Leiduck [1996] AC 284 (PC) 310–11. See also Associated Newspapers Group v Insert Media Ltd [1988] 1 WLR 509, 514H, where Hoffmann J obiter suggested that anti-suit injunctions were founded on ‘a right not to be sued in the foreign court’ but not any ‘independent cause of action’.

⁵⁶ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [31]–[59], [99].

⁵⁷ British Airways Board v Laker Airways [1985] AC 58 (HL) 81A–E, 95D–F. Although in the latter discussion Lord Scarman was, as it happens, addressing the single forum situation, the logic of his analysis of the equity would not be confined to single forum cases (pace Lawrence Collins LJ’s reasoning in Masri at [43]).

⁵⁸ See nn 13, 45, 46.

⁵⁹ See Ch 5, section D, ‘Single Forum Cases’.

⁶⁰ In oral argument Lawrence Collins LJ had said that the case law on these issues was ‘bedeviled’ by The Siskina.

⁶¹ ‘Essentia non sunt multiplicanda praeter necessitatem’, or don’t multiply things if you don’t have to.

⁶² British Airways Board v Laker Airways [1984] QB 142 (CA) 148F, where the claims for the injunctions were commenced by writ; see also Midland Bank v Laker Airways [1986] QB 689 (CA) 691; Mercedes Benz v Leiduck [1996] AC 284 (PC) 310G; Youell v Kara Mara Shipping [2000] 2 Lloyds Rep 102 [44]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [57]; Steamship Mutual Underwriting Association (Bermuda) v Sulpicio [2008] 2 Lloyds Rep 269 [10, 28]; Joint Stock Asset Management Company Ingostrakkh Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA) [46]; Golden Endurance Shipping v RMA Watanya [2015] 1 Lloyds Rep 266 [8], [10(i)]. Further, the cause of action for the injunction is distinct to the cause of action on the underlying merits: Toepfer International v Molino Boschi [1996] 1 Lloyds Rep 510 [8]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [55].

In Amoco (UK) Exploration v British American Offshore [1999] 2 Lloyds Rep 772, 780, Langley J held in relation to a non-contractual anti-suit injunction that ‘the claim is not one designed to ascertain substantive rights but only to determine in which Court such rights should properly be ascertained’, so that it could not fit within the powers to serve out under CPR 6.36 and PD 6B. This appears to suggest that he did not think that there was a real cause of action for a non-contractual injunction. However, it is suggested that Langley J was wrong. First, it may well be that a non-contractual anti-suit injunction does ascertain substantive rights, even if relatively circular and thin rights, such as a right to an injunction (per Lawrence Collins J in Masri at [52]) or a right not to be sued when that would be unconscionable (per Lord Nicholls in Mercedes-Benz at 310G). Second, even if there is no underlying right, it is submitted that there can be a cause of action, as the established legitimacy of such final relief shows. Third, the injunction plainly goes beyond merely determining where litigation should occur, even without any underlying right, as it will involve an assessment of whether the injunction defendant’s conduct is vexatious and should be restrained in equity. Indeed, the end result of Langley J’s reasoning was the conclusion that it was impossible to serve vexation-based non-contractual anti-suit injunctions out of the jurisdiction under CPR Part 6. It is submitted that this is an unnecessary and unhelpful result: see para 3.27 and Ch 18, paras 18.17–18.18.

⁶³ See para 3.14.

⁶⁴ Mercedes Benz v Leiduck [1996] AC 284 (PC) 298G–299A, 302H–303A.

⁶⁵ Mercedes Benz v Leiduck [1996] AC 284 (PC) 310E–311B.

⁶⁶ South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40D–E (‘forms of injunction’).

⁶⁷ See paras 3.03–3.05.

⁶⁸ British Airways Board v Laker Airways [1985] AC 58 (HL) 81A–E.

⁶⁹ Mercedes Benz v Leiduck [1996] AC 284 (PC) 301F–302A, 301D.

⁷⁰ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [44], [55]–[56].

⁷¹ Mercedes Benz v Leiduck [1996] AC 284 (PC) 301F–302D; see contra the minority opinion of Lord Nicholls at 310A–B, 313B–F.

⁷² See Ch 18, paras 18.16–18.18.

⁷³ Cruz City 1 Mauritius Holdings v Unitech [2015] 1 Lloyds Rep 191 [79]–[80].

⁷⁴ See Ch 18, paras 18.17–18.18. For example, in BNP Paribas v Russian Machines [2012] 1 Lloyds Rep 61, and (on appeal) Joint Stock Asset Management Company Ingostrakkh Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA) [2], [69]–[78], Blair J and the Court of Appeal had no hesitation in permitting a non-contractual anti-suit injunction, based on unconscionability and vexation or oppression, to be served out of the jurisdiction under CPR 6. The Amoco point was, it seems, not even argued.

⁷⁵ OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [24].

⁷⁶ Ch 14, section B, ‘Non-Contractual Damages’.

⁷⁷ For the choice of law analysis, see Ch 4, section B, ‘Applicable Law’.

⁷⁸ See Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [57].

⁷⁹ See paras 3.04, 3.06, 3.15–3.16, 3.24–3.25.

⁸⁰ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [57].

⁸¹ However, cf Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [36], although the reasoning may not be very clear.

⁸² See Ch 16, paras 16.21–16.24; Ch 17, paras 17.06–17.09, and Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [17]–[21].

⁸³ Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [59]–[61]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [59]. See Ch 13, paras 13.08, 13.27.

⁸⁴ See eg Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 93; REC Wafer Norway v Moser Baer Photo Voltaic [2010] 1 Lloyds Rep 410. See also Joint Stock Asset Management Company Ingostrakkh Investments v BNP Paribas SA [2012] 1 Lloyds Rep 649 (CA) [46], [80]–[82], where a final vexation-based anti-suit injunction was claimed to prevent evasion of an arbitration clause: this is also a form of alternative forum injunction.

⁸⁵ CPR 8.1(2)(a).

⁸⁶ Final (and interim) anti-suit injunctions to enforce an arbitration clause are sought under s 37(1) of the Supreme Court Act 1981, and not under the Arbitration Act 1996: see para 3.06. Nevertheless, such final injunctions must be brought by arbitration claim form, as they are regarded as ‘affecting’ the arbitration agreement, and so fall within CPR 62.2(1)(d), which engages the obligation to use an arbitration claim form in CPR 62.3. This was held in AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [49], where Sokana Industries v Freyre [1994] 2 Lloyds Rep 57, 64–65 was regarded as only applicable to the narrower terms of the previous rules. For examples of this procedure, see Steamship Mutual Underwriting Association (Bermuda) v Sulpicio [2008] 2 Lloyds Rep 269 [10], [28] and Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] EWHC 1469. It also follows that the court has power to serve claims for such final injunctions out of the jurisdiction under CPR 62.5: see Ch 18, paras 18.78–18.79. So far as concerns the requirement in CPR 62.4 that the claimant must specify under which section of the 1996 Act the claim is made, it appears that this should be read with the addition of the words ‘if any’.

⁸⁷ Donohue v Armco [1999] 2 Lloyds Rep 649, 664–65; Navigation Maritime Bulgare v Rustal Trading (The Ivan Zagubanski) [2002] 1 Lloyds Rep 106, 127 (injunction granted on an interim basis only).

⁸⁸ Cf Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] EWHC 1469. The grant of final relief may be inappropriate where the anti-suit injunction is sought in the context of independent substantive proceedings for other relief, due to the possibility of changes in the relationship between the English substantive action and the foreign action, ‘whereby the oppression originally complained of were relieved’: see The Eras Eil Actions [1995] 1 Lloyds Rep 64 at 74. In Skype Technologies v Joltid [2011] ILPr 8 [41], the possibility of problems arising from a broad form of final injunction was dealt with by the inclusion of an express liberty to apply.

⁸⁹ As occurred in Pena Copper Mines v Rio Tinto Co (1912) 105 LT 846 (CA) 849; Samengo-Turner v J&H Marsh & McLennan (Services) [2007] ILPr 52 (CA) [21]; Golden Endurance Shipping v RMA Watanya [2015] 1 Lloyds Rep 266 [10(i)].

⁹⁰ Donohue v Armco [1999] 2 Lloyds Rep 649, 664–65; West Tankers v Ras Riunione Adriatica di Sicurta (The Front Comor) [2005] 2 Lloyds Rep 257, 273 [75]–[76].

⁹¹ As in Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] EWHC 1469.

⁹² See eg Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [19]; Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 (PC) (Brunei) 896.

⁹³ See eg the events in Petter v EMC [2016] ILPr 3 (CA), discussed in T Raphael, ‘Do as You Would be Done By? System-Transcendent Justification and Anti-Suit Injunctions’ [2016] LMCQ 256.

⁹⁴ See eg Mobile Telecommunications Company v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] 2 Lloyds Rep 192.

Mandatory anti-suit injunctions were granted, without specific discussion of their nature or any mention of a higher threshold, in a number of cases such as British Airways Board v Laker Airways [1984] QB 142 (CA) 203 (overturned on appeal on other grounds [1985] AC 58 (HL)); Hemain v Hemain [1988] 2 FLR 388 (CA) 389C; Toepfer International v Société Cargill France [1997] 2 Lloyds Rep 98, 102, 111 (this point was not raised on appeal, [1998] 1 Lloyds Rep 379 (CA) 386); Turner v Grovit [2000] QB 345 (CA) 350B, 364F, [2002] 1 WLR 107 (HL) 113–14 [16]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [6]–[7]; Compania Sud Americana de Vapores v Hin-Pro International Logistics [2015] 1 Lloyds Rep 301 [36]; Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] 2 All ER (Comm) 234 [143]. In Petter v EMC [2015] EWCA Civ 828 (31 July 2015), the Court of Appeal was moved to grant a mandatory anti-anti-suit injunction.

⁹⁵ Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160 [14].

⁹⁶ Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA).

⁹⁷ In Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1, 36–37, Aikens J refused to grant a mandatory injunction. This was in part because the injunction was actually, in the unusual circumstances of that case, sought against a defendant in the foreign proceedings. But Aikens J observed that the facts in Turner v Grovit [2000] 1 QB 345 (CA), where a mandatory order had been granted, had been ‘extreme’; and his other ground for declining to grant a mandatory injunction on the ground that it would be a ‘direct interference with the procedure of a foreign court’, which he thought raised serious problems of comity. There are a number of a cases where the court has accepted that a higher threshold is required but gone on to grant the mandatory anti-suit injunction: see eg Ecom Agroindustrial v Mosharaf Composite Textile Mill [2013] 2 Lloyds Rep 196 [37]–[39]; Evergreen Marine (Singapore) v Fast Shipping & Transportation C [2014] EWHC 4893 (QB) [19]. Similarly, in Credit Suisse First Boston (Europe) v Seagate Trading [1999] 1 Lloyds Rep 784, 792–94, Rix J appeared to have considered that something additional would be required to justify mandatory relief. On the other hand, the authorities cited in n 94 do appear to show many cases of mandatory injunctions being granted without any additional hesitation.

⁹⁸ Cf National Commercial Bank Jamaica v Olint [2009] 1 WLR 1405 [20]; Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] 2 Lloyds Rep 192. See also the substance of the reasoning in Evergreen Marine (Singapore) v Fast Shipping & Transportation [2014] EWHC 4893 (QB) [19].

⁹⁹ As Cooke J has observed, failing to sue in England is not a breach of an exclusive forum clause, it is only the act of suing in the wrong forum which is a breach: Compania Sud-Americana v Hin-Pro International Logistics [2015] 1 Lloyds Rep 301 [38]. See also Pena Copper Mines v Rio Tinto Co (1911) 105 LT 846 (CA) 852:

The parties could not be compelled to go to arbitration. They cannot now; but an appeal to the courts can be stopped, and that indirectly enforces the arbitration clause. Therefore the status of an arbitration clause in England is that it will not be specifically enforced, but by proper proceedings you can prevent the other party from appealing to the English courts in respect of any matter which by contract ought to be decided by arbitration.

There is also a line of authority that specific performance cannot be granted of arbitration agreements: Street v Rigby (1802) 6 Ves Jun 815, 31 ER 1323, 1324–25; Gourlay v Duke of Somerset (1815) 19 Ves Jun 429, 34 ER 576; In Re Smith and Service (1890) 25 QB 545 (CA).

The old case of Penn v Lord Baltimore (1750) 1 Ves Sen 444, 27 ER 1132, where specific performance was granted of a form of arbitration clause, under which commissioners were appointed to resolve a boundary dispute, arises out of exceptional facts, as the parties had expressly agreed that a particular set of disputes would be resolved by the commissioners. In the Canadian case of Axio Supernet v Bell West 2003 ABQB 195 (Alberta), a mandatory injunction requiring a recalcitrant party to arbitrate was granted. But again, the facts were unusual. The mandatory injunction appears to have been justified by the particular terms of the dispute resolution agreement, which provided that ‘the parties have agreed to implement a dispute resolution mechanism to resolve issues in dispute in a timely and effective manner’, and contained detailed positive obligations to negotiate, and then mediate, disputes before arbitration.

¹⁰⁰ For an example of an interim mandatory injunction being refused, see Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] EWHC Comm 25 [24]. For an example of mandatory injunctions being granted at the interim stage, see Evergreen Marine (Singapore) v Fast Shipping & Transportation [2014] EWHC 4893 (QB) [19]. For a more detailed discussion of interim mandatory anti-suit injunctions, see Ch 13, section F, ‘Mandatory Interim Injunctions’.

¹⁰¹ This has been apparent since the very beginnings of the remedy. In Love v Baker (1664–65) Nels 103, 21 ER 801, (1665) 1 Chan Cas 67, 22 ER 698; see also sub nom Lowe v Baker 2 Freem Chy 125, 22 ER 1101, where the first reported claim for an anti-suit injunction was refused, the report observes that ‘all the Bar was of another opinion. It was said, The Injunction did not lie for Foreign Jurisdictions, nor out of the King’s Dominions. But to that it was answered, The Injunction was not to the Court, but to the Party.’ This type of ‘personal logic’ was the principal argument advanced when the legitimacy of the remedy was accepted in principle in Lord Portland’s Case 114 Harg MSS 166 (see Ch 2, para 2.05); and it formed the basis of the decision in the leading early case of Bushby v Munday (1821) 5 Madd 297, 56 ER 908, 913. In Kennedy v Cassillis (1818) 2 Swans 313, 36 ER 635, 638, Lord Eldon dissolved an injunction in part because ‘the injunction is sought, not against the persons in whose name this bank stock stands, but against the Court of Session, which never can be made effectual’ (although it can be noted that the summary in the report of the actual injunction sought, at 635–36, does not seem to bear out the surprising idea that the remedy was actually sought against the foreign court). See also Lord Portarlington v Soulby (1834) 3 My & Ky 104, 40 ER 40, 41–42 (describing the Bar’s riposte in Love v Baker as ‘a very sound answer’); In re Artistic Colour Printing (1880) 14 Ch D 502, 505.

In more recent authority the essential personal logic of the anti-suit injunction has been repeatedly confirmed. See Castanho v Brown & Root [1981] AC 557 (HL) 572F–573A; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892C–D; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19]; Turner v Grovit [2002] 1 WLR 107 (HL) 117 [23]; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]; Through Transport Mutual Insurance Association (Eurasia) v New India Assurance Co [2004] 1 Lloyds Rep 206 [34] (overturned on appeal but not on this point, [2005] 1 Lloyds Rep 67 (CA)); OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [40(1)], [2005] 2 Lloyds Rep 170 (CA) [63]; Beazley v Horizon Offshore Contractors [2005] Lloyds Rep IR 231 [39]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [17]; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁰² Bushby v Munday (1821) 5 Madd 297, 56 ER 908, 913: ‘Over the Court of Session in Scotland this Court has not, nor can it pretend to have, any authority whatsoever … this Court does not pretend to any interference with the other Court.’ Unsurprisingly, there has never been any attempt to seek contempt-of-court remedies against a foreign court or its staff where an injunction defendant has proceeded with his foreign proceedings in breach of an anti-suit injunction, as this would be regarded as wholly inappropriate: see Castanho v Brown & Root (UK) Ltd [1980] 1 WLR 833, 866B–D (dealing with the case of contempt proceedings against the foreign lawyers prosecuting the injunction claim; the case of the foreign court is a fortiori); Smith Kline & French Laboratories Ltd v Bloch (No 4) [1984] ECC 352 [66].

¹⁰³ For criticism that the personal logic is an ‘artifice’, see C Ambrose, ‘Can Anti-Suit Injunctions Survive European Community Law?’ (2003) 52 ICLQ 401, 407–10, and see generally Ch 1, para 1.33.

¹⁰⁴ Per Lord Scarman in British Airways Board v Laker Airways [1985] AC 58 (HL) 95. See also South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40D–E; OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [40(1)], [2005] 2 Lloyds Rep 170 (CA) [63]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [81]. In Barclays Bank v Homan [1993] BCLC 680, 687, Hoffmann J suggested that the personal logic was less ‘realistic’ in a case based on vexation or oppression than in a case based on a contractual right to restrain an individual litigating abroad.

¹⁰⁵ It justified the requirement of ‘caution’ (outside the case of contractual and perhaps quasi-contractual anti-suit injunctions) in South Carolina v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40D–E; and in Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138G–H, it was held that the indirect interference with the foreign court was a matter which required justification, and in particular required that the English court had a ‘sufficient interest’ in the matter in question.

¹⁰⁶ In Arab Monetary Fund v Hashim (No 6), (Hoffmann J, 14 July 1992), this was not seen as a problem, although the injunction was refused on other grounds. In Murcutt v Murcutt [1952] P 266, 269–70, which concerned other proceedings within England, the grant of an injunction against persons not party to the suit in which the injunction was sought was viewed as ‘unusual and indeed extreme’. But this is from a different era.

¹⁰⁷ In OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [37], this was justified on the basis that if there is a power to grant an injunction to restrain a wrong committed by a primary wrongdoer then it follows that there will be power to restrain a third party from procuring or assisting the primary wrongdoer so to act: Hubbard v Woodfield (1913) 57 SJ 729; Acrow (Automation) v Rex Chainbelt [1971] 1 WLR 1676 (CA). However, a simpler analysis may be that the conduct of the third party is itself vexatious and oppressive. Once the injunction has been granted against the primary injunction defendant, a similar result could be produced by contempt proceedings against a third party who aids and abets, or procures, the injunction defendant to break the injunction: Acrow (Automation) v Rex Chainbelt [1971] 1 WLR 1676 (CA) 1682C–E.

In Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160 [41], it was held that the insurers who were ‘calling the shots’ and causing their insured to breach the exclusive jurisdiction clause were arguably liable to be injuncted because their conduct was tortious, and amounted to inducement of a breach of contract, or interference with business relations, or conspiracy; and see to the same effect Kallang Shipping SA Panama v Axa Assurances Senegal (The Kallang) (No 2) [2009] 1 Lloyds Rep 124 [90–94]; Sotrade Denizcilik Sanayi Ve Ticaret v Amadou Lo (The Duden) [2009] 1 Lloyds Rep 145 [65–68]. But this analysis has its difficulties, not least because it could lead to serious problems in relation to the applicable law of the tort: see OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[24]. In The Kallang (No 2) at [90] and The Duden at [65] the court made the pointed observation that choice of law points had not been raised. See further Ch 4, paras 4.38–4.39.

¹⁰⁸ OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [29], [37], [2005] 2 Lloyds Rep 170 (CA) [14], [41], [82].

¹⁰⁹ MacKinnon v Donaldson Lufkin & Jenrette [1986] Ch 482, 493-94.

¹¹⁰ In Castanho v Brown & Root [1980] 1 WLR 833 (CA), an injunction was granted to restrain the plaintiff ‘by his servants or agents’ from continuing proceedings in the Texan courts; and it seems that no relief was specifically granted against the plaintiff’s Texan lawyers: see 865E. Nevertheless, contempt proceedings were brought against the Texan lawyers. This was regarded as an ‘absurd episode’ by Shaw LJ: see 866B–D (although see the different reasoning of Lord Denning MR, based on considerations of territorial jurisdiction, at 856G–H). For a similar unwillingness to target an injunction defendant’s foreign lawyers, see Smith Kline & French Laboratories v Bloch (No 4) [1984] ECC 352 [66].

There is very old precedent supporting the extension of common injunctions to the lawyers of the injunction defendant, where those lawyers were within the jurisdiction: Cotes v Freston (1558) Choyce Cases 108, 21 ER 67, but this does not appear to have been followed. It is submitted that it is no longer of any real persuasive value, in particular in respect of foreign lawyers.

¹¹¹ See L Collins, ‘Public International Law and Extraterritorial Orders’ in Essays in International Litigation and the Conflicts of Laws (Clarendon 1994) 102–07. The US Appellate Court never had an opportunity to rule on these issues, as the case settled.

¹¹² Sotrade Denizcilik Sanayi Ve Ticaret v Amadou Lo (The Duden) [2009] 1 Lloyds Rep 145 [26]–[28].

¹¹³ Trafigura v Emirates General Petroleum [2010] EWHC 3007 (3 months); Compania Sud Americana de Vapores v Hin-Pro International Logistics [2013] EWHC 987 (12 months, concurrent); Mobile Telecommunications v HRH Prince Hussam Bin Saud Bin Abdulaziz Al Saud [2018] EWHC 3749 (Comm) (12 months). On specific facts, where contempt had been purged, see Gulf Azov Shipping v Chief Idisi (No 1) [2001] EWCA Civ 21 (3 months).

¹¹⁴ Access Bank v Rofos Navigation [2013] EWHC 230, [2013] EWHC 748, [2013] EWHC 3861. See in Australia, Cocoon Data Holdings v K2M3 [2011] VSC 355.

¹¹⁵ Case C-394/07, Gambazzi v DaimlerChrysler Canada [2009] ECR I-02563; the Milan Court of Appeal eventually concluded that the debarring order was not disproportionate.

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