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Oxford Law Citator

4 Anti-Suit Injunctions: General Principles

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 abroad — Injunctions to restrain proceedings in England and Wales

(p. 77) 4 Anti-Suit Injunctions: General Principles

A. The General Principles

4.01 The lead judgment on the general principles applicable to anti-suit injunctions is Lord Goff’s magisterial judgment in Aérospatiale,¹ which is and remains English law.

4.02 In Deutsche v Highland, Toulson LJ summarized the modern principles governing the grant of anti-suit injunctions:²

1. Under English law the court may restrain a defendant over whom it has personal jurisdiction from instituting or continuing proceedings in a foreign court when it is necessary in the interests of justice to do.
2. It is too narrow to say that such an injunction may be granted only on grounds of vexation or oppression, but, where a matter is justiciable in an English and a foreign court, the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive.
3. The courts have refrained from attempting a comprehensive definition of vexation or oppression, but in order to establish that proceeding in a foreign court is or would be (p. 78) vexatious or oppressive on grounds of forum non conveniens, it is generally necessary to show that (a) England is clearly the more appropriate forum (‘the natural forum’), and (b) justice requires that the claimant in the foreign court should be restrained from proceeding there.
4. If the English court considers England to be the natural forum and can see no legitimate personal or juridical advantage in the claimant in the foreign proceedings being allowed to pursue them, it does not automatically follow that an anti-suit injunction should be granted. For that would be to overlook the important restraining influence of considerations of comity.
5. An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal polices may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention.
6. The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive.

…
8. The decision whether or not to grant an anti-suit injunction involves an exercise of discretion and the principles governing it contain an element of flexibility.

4.03 Subject to three specific points, underlined above, Toulson LJ’s summary is a good exegesis of most of the general principles in non-contractual alternative forum situations. (A specific set of principles applies in contractual situations, as discussed in Chapter 7.)

But it is an inevitable by-product of the common law method, and not a matter of reproach, that summaries formulated for one case may be slanted towards the questions there in issue. So, the summary in Deutsche does not cover: (a) injunctions to enforce a specific legal or equitable right; (b) injunctions to protect the processes, jurisdiction, or judgments of the court; (c) single forum injunctions; and (d) ‘sufficient interest’. In particular points 4–6 are focused on alternative forum situations and require adaptation in other contexts.

4.04 As to the three underlined passages:

(1) It is a misstatement, in an obiter passing comment, to suggest that foreign proceedings can be vexatious ‘on grounds of forum non conveniens’: the doctrinal breakthrough in Aérospatiale was to separate vexation from forum non conveniens. The proof of vexation is analytically different and sets a higher threshold.³ We discuss this in section J, Forum non Conveniens, below.
(p. 79) (2) It has often been accepted, following Lord Goff’s speech in Aérospatiale, that for injunctions on grounds of vexation and oppression (although not in all other contexts), it is ‘generally’ (but not always) required that England is the natural forum for the litigation. But a closer reading of Airbus v Patel shows that, even in that context, Lord Goff wished to move away from any requirement in general of natural forum, and replace it with the more fluid concept of ‘sufficient interest’.
(3) The second underlined passage, which is also obiter, opens up the controversy of whether respect for comity is dispensed with in relation to contractual anti-suit injunctions. There are authorities that support such a conclusion, but as addressed in Chapter 7, it is submitted it is not right. The presence of an exclusive jurisdiction clause can reduce comity concerns, but cannot eliminate them.⁴

4.05 With some temerity, therefore, this work ventures to propose its own summary. The general principles governing the grant of an anti-suit injunction to restrain the pursuit of foreign court⁵ proceedings, can be summarized as follows.⁶

(1) The principles for the grant or refusal of an anti-suit injunction will be determined by English law.
(2) An anti-suit injunction, like any injunction, is a discretionary remedy and will only be granted if the court considers it is appropriate to do so in all the circumstances of the case.
(3) The injunction will be granted when ‘the ends of justice’ require it, or in other language, when it is in ‘the interests of justice’ to do so.
(4) Within that general principle, an anti-suit injunction may be granted to protect a substantive legal or equitable right not to be sued abroad.⁷ Where foreign proceedings are in breach of a contractual forum clause not to be sued abroad, and in analogous situations, a special set of principles applies.⁸
(5) Where no such substantive legal or equitable right exists, an anti-suit injunction will generally only be granted to restrain foreign proceedings that are or will be vexatious or oppressive, or, in language that is sometimes used, unconscionable.⁹
(6) However, injunctions may also be granted where foreign proceedings are or will be an illegitimate interference with, or where the injunction is necessary for the protection of, the processes, judgments, and/or jurisdiction of the English court. In limited circumstances injunctions may also be granted where this is necessary to protect the important public policies of the forum.
(p. 80) (7) Since the court is concerned with the ends of justice, account must be taken not only of the injustice to the injunction claimant if the injunction defendant is allowed to pursue his proceedings, but also of the injustice to the injunction defendant if he is not allowed to do so. The legitimate interests of the injunction defendant in pursuing the proceedings abroad, or the absence of such, are relevant considerations.
(8) In exercising the power to grant an anti-suit injunction, regard must be had to the principle of comity. As a result, save where the foreign proceedings are in breach of contract, the power must be exercised with caution.
(9) It is a consequence of comity that the court must have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court that an injunction involves. In an alternative forum case, where the injunction is based on vexation or oppression, the assessment of sufficient interest will involve consideration of whether the court is the natural forum for the resolution of the substantive disputes between the parties; or (perhaps) the natural forum for the resolution of disputes as to forum. But the concept of natural forum is only ever expressed as being ‘generally’ a requirement, and is too narrowly framed to serve as a limiting requirement in all cases. In particular, there is no need separately to identify the natural forum in relation to injunctions sought to protect the processes, jurisdiction, and judgments of the English court, or English public policy, as the court is always the appropriate court for that purpose.
(10) The principle of comity requires the court to recognize that, in assessing what is the appropriate forum for where litigation should proceed, different judges operating under different legal systems with different legal polices may legitimately arrive at different answers, and that it may not be appropriate for an English court to arrogate to itself the decision how a foreign court should determine the matter. In order for an injunction to be legitimate, there must be good reason why the decision to stop the litigation will be made by the English judge rather than the foreign judge. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention.

4.06 This summary is controversial in certain respects. Notably, there have been differences, which can be personified as a debate between Lord Goff and Lord Hobhouse,¹⁰ as to whether the root concepts of the anti-suit injunction are Lord Goff’s tests of ‘the ends of justice’ and ‘vexation or oppression’ on the one hand, or ‘unconscionable conduct’ on the other hand.¹¹ In the modern case law, Lord Goff’s language is the most commonly used,¹² although sometimes there is a blending of the two phrasings.

4.07 Finally, these principles are (currently, and depending on the effect of Brexit¹³) subject to the limiting effect of the Brussels–Lugano regime. This is discussed in Chapter 12, but in (p. 81) broad summary, where the underlying litigation concerns matters within the scope of the Brussels–Lugano regime, an anti-suit injunction cannot be sought to restrain proceedings before the courts of another Brussels–Lugano state.

B. Applicable Law

4.08 Under the law as it stands, the court will determine whether a non-contractual anti-suit injunction should be granted according to its own concepts of equity.¹⁴ ‘[T]he injustice which can justify an anti-suit injunction must inevitably be judged according to English concepts of justice.’¹⁵ Similarly, where the proper law of a forum clause is English law, the grant or refusal of an anti-suit injunction to enforce it will be governed by English principles.¹⁶

4.09 The current position on applicable law is clear. But it has been reached with little exploration of the principles of private international law. It has also not been tested in the context of the European choice of law rules put in place by the Rome II Regulation. The effect of that Regulation needs to be considered, since it seems likely that the Rome I and Rome II Regulations will, at least in substance, continue to occupy the field of most of English choice of law rules irrespective of how Brexit falls out (see Ch 1, section I, ‘Brexit’).

4.10 The assumption that non-contractual anti-suit injunctions should always be governed by English law appears to derive in large part from the traditional English conflicts analysis of equity, under which the existence and enforcement of equitable rights and powers was a matter for the lex fori.¹⁷ But even before the Rome II Regulation, this had begun to be overtaken by the application of choice of law principles to the existence of substantive equitable rights and wrongs.¹⁸

4.11 The analysis of applicable law is dependent on the juridical foundations of the injunction: if the anti-suit injunction is viewed, in non-contractual cases, as founded upon a substantive equitable right, it becomes more difficult to avoid a choice of law analysis, and less easy to apply the lex fori.

4.12 Yet a choice of law analysis poses a potentially existential threat to English law on non-contractual anti-suit injunctions. It is by no means guaranteed that the European Court (p. 82) of Justice (ECJ) would interpret (or would have interpreted) the Rome II Regulation so that English law could apply to anti-suit injunctions. But application of the law of the place where the targeted proceedings are brought could neuter anti-suit injunctions. The foreign legal system would be likely to treat the proceedings before its own courts as not contrary to any legal obligation in many cases where the English courts would regard foreign proceedings as vexatious and oppressive,¹⁹ and perhaps in most cases where it really mattered.

1. The Rome II Regulation

4.13 The Rome II Regulation is part of English conflicts law for now. It applies to choice of law for ‘non-contractual obligations in civil and commercial matters’ (Art 1(1)). The concept of ‘non-contractual obligations’ will not be confined to tortious obligations: it will probably cover equitable obligations analogous to tort claims, such as claims for dishonest assistance in a breach of trust.²⁰ However, under Article 1(3) there is an exception for ‘evidence and procedure’. The concept of ‘procedure’ is an autonomous European concept,²¹ although its application may be influenced by the national law landscape. If a non-contractual matter falls outside Rome II, it will be governed by the English rules of the conflicts of laws.

4.14 For obligations within the scope of the Regulation, the primary²² default choice of rule in Article 4 for a ‘non-contractual obligation arising out of a tort/delict’ is ‘the law of the country where the damage occurs’, which refers to where the direct and not the indirect damage occurs.²³ But the default rules can be displaced if ‘the tort/delict is manifestly more closely connected’ to another country. Further, under Article 15, ‘the scope of the law applicable to non-contractual obligations under this Regulation shall govern … (d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage . . .’, which is generally understood to cover injunctions.²⁴

4.15 Given the potential awkwardness of applying Article 4, the English courts are likely to strive to avoid the conclusion that the choice of law rules in Rome II apply.²⁵ There are various ways in which this could be achieved. One is to analyse the anti-suit as not derived from an underlying non-contractual obligation, and as a procedural remedy granted under statute to enforce the court’s perception of what procedurally is in the interests of justice, or to protect its own jurisdiction.²⁶ Another is to view any such equitable obligation as outside the scope of ‘non-contractual obligation’ in Rome II, not being the sort of conventional civil right or obligation inter partes to which that Regulation is directed: it is not an obvious (p. 83) ‘tort/delict’ within Article 4, but none of the other specific heads of Rome II apply.²⁷ However, if an anti-suit is viewed as based on an underlying equitable obligation, then the more concrete substance that is accorded to such an obligation, the more delicate these analyses become. From a European perspective, a substantive equitable obligation, which makes it a civil wrong to litigate vexatiously, might look rather like an obligation in tort/delict that should fall within ‘non-contractual obligation’. If so, Article 15(d) suggests the law applicable to the substance of injunctive ‘measures’ to prevent damage arising from breach of such an obligation should be governed by the law applicable to such obligation.

4.16 If Rome II applies, the current English case law on the Brussels–Lugano regime suggests that Article 4(1) may point to the law of the country of the targeted court, on the basis that the direct damage will occur where the ‘wrongful’ litigation will go ahead.²⁸ It might be argued that the damage would occur in England, where the injunction interferes with the jurisdiction of the English court, or with English litigation, but the contrary argument would be that these are indirect consequences, not the direct damage; and such logic would be more difficult to apply to some single forum injunctions.²⁹ If Article 4(1) were to point to the country of the targeted litigation, then for English law to apply, it would be necessary to show that the ‘tort/delict’ was ‘manifestly more closely connected’ to England.³⁰ The English court would be tempted to conclude that an anti-suit injunction to enforce its own ideas of justice would be manifestly most closely connected to England. When viewing the injunction as a remedy granted to enforce the English court’s ideas of procedural justice, or to protect its own jurisdiction, or to prevent English litigation being vexatiously duplicated, the connections to England are strong. Yet the connections to the state where the targeted litigation would otherwise go ahead are real; so, it is not guaranteed that the ECJ would agree they are manifestly outweighed by the connections to England—although an English court is likely to regard this as acte clair. We return, also, to the question of whether there is an underlying right, as the connections to England will be more intimate if the injunction is viewed as essentially procedural or protective of the English jurisdiction.³¹

2. The Application of Residual English Principles

4.17 If anti-suit injunctions fall outside the scope of the Rome II Regulation (or if the Regulation ceases to be part of English conflicts law), it is very likely that the English courts will continue to treat English law as applicable to the grant of anti-suit injunctions. In particular, if the anti-suit were to regarded as procedural for the purposes of Rome II, it would inevitably (p. 84) also be regarded as procedural under English common law conflicts of laws rules, and so governed by the lex fori.³² If it fell outside the Rome II Regulation for other reasons, the same result would be likely to apply, although there are various ways in which this could be justified, the choice of which will interconnect with the question of whether there is an underlying substantive right. It may be, for example, that the anti-suit injunction would be regarded as a sui generis emanation of the English court’s perception of procedural justice, which can only be governed by the lex fori, and to which the tendency to approach equitable obligations by means of choice of law rules should not apply.³³

4.18 The English courts will wish to apply English law but it remains to be seen whether the European Court would accept this, if the point were ever referred. Yet the debate will be shaped by the extent to which the anti-suit injunction is based upon an underlying right; and this may in turn drive the English court’s analysis of the juridical underpinnings of the injunction towards a more procedural analysis.³⁴

C. A Discretionary Remedy Governed by Principle

4.19 The court’s powers to grant a final anti-suit injunction will in most cases derive from section 37(1) of the Senior Courts Act 1981,³⁵ under which the court may grant an injunction if it is ‘just and convenient’ to do so.

4.20 Although the statutory wording of section 37(1) is in broad terms, the court will not exercise its power to grant an anti-suit injunction merely because it considers it ‘just and convenient’ to do so in abstract. The exercise of the court’s discretion is governed by a set of principles and tests developed in the case law by the courts, which can preclude the grant of an injunction which might otherwise be thought intuitively to be just or convenient.³⁶

(p. 85) 4.21 Nevertheless, the injunction always remains a discretionary remedy. Even if the normal principles and tests for the grant of an anti-suit injunction are satisfied, relief can be always refused as a matter of discretion.³⁷ In exercising its discretion, the court will take account of all relevant facts which can affect whether or not it would be just or convenient, or unjust or inconvenient to grant the remedy. Types of factual circumstances which can be of particular relevance to discretion are discussed in section N, ‘Other Discretionary Considerations’ below.

D. The Ends of Justice

4.22 The power to grant an anti-suit injunction is to be exercised when the ‘ends of justice’ require it. The phrase ‘in the interests of justice to do so’ is sometimes used instead.³⁸ It makes no difference. What justice requires must be judged according to English notions of justice.³⁹

4.23 This test, propounded in modern times by Lord Goff, connects the modern law to the equitable history of the remedy. The Court of Chancery would grant an injunction to restrain foreign proceedings when ‘the ends of justice’ required it.⁴⁰ However, the flexibility of the concept permits some liberties to be taken with history. It would not now be appropriate to restrain foreign proceedings simply on the ground that under English principles of equity there would be a substantive equitable defence to which the foreign court might not give effect.⁴¹ Consequently, the use of the equitable notion of ‘the ends of justice’ does not mean that an injunction will be granted in the same situations where the Court of Chancery would have granted an injunction before the Judicature Act.⁴² Instead, the phrase directs (p. 86) the attention of the court to what justice demands in terms of the appropriate shape and location of future litigation.⁴³

4.24 In principle, if ‘the ends of justice’ require it, an injunction may be granted without the need to satisfy any other criterion.⁴⁴ However, in the modern case law, the ends of justice are generally given concrete form through intermediate concepts, such as vexation or oppression, or illegitimate interference with the processes, jurisdiction, or judgments of the English court.⁴⁵

4.25 The requirements of the ‘ends of justice’ also shape and direct, and in many cases subsume, the court’s exercise of its discretion.⁴⁶ Thus, injunctions will be refused if the grant of relief would cause injustice to the injunction defendant that would outweigh the injustice to the injunction claimant if the remedy were refused.⁴⁷

E. A Legal or Equitable Right

4.26 An anti-suit injunction may be granted where the foreign proceedings infringe a relevant substantive legal or equitable right.⁴⁸

4.27 The question of whether there is a general substantive equitable right not to be affected by litigation contrary to the interests of justice has been explored in Chapter 3, where it was concluded that the question is uncertain, but that in principle such a right could be dispensed with.⁴⁹ If a general substantive equitable right does exist, then all anti-suit injunctions are granted to enforce an equitable or legal right.

(p. 87) 4.28 There is a limited set of specific substantive rights not to be subjected to litigation elsewhere in particular circumstances, which have an independent juridical basis. They include contractual rights, some tortious rights, and some substantive equitable rights.

1. Substantive Contractual Rights

4.29 Contractual rights not to be sued in particular locations, or at all, can be created by exclusive forum clauses, arbitration clauses, and similar clauses.⁵⁰ Where these exist, the shape of the discretion to grant an injunction is transformed. The courts will, in general, restrain foreign proceedings in breach of contract unless there are strong reasons not to do so, and it is not necessary to show that the targeted proceedings are vexatious, or oppressive, or an interference with the process of the English courts.

2. Specific Equitable Rights

4.30 Before the Judicature Acts, the Court of Chancery would restrain proceedings before the common law courts by means of the ‘common injunction’, where there was a risk that equitable defences would not be given effect by the common law courts. In the early development of the anti-suit injunction, the same principles were initially applied to foreign proceedings.⁵¹ However, in modern times there has been no case where an injunction has been granted to restrain foreign proceedings merely on the grounds that the foreign court might reach a different decision to English principles of equity, and despite some comments to the contrary by Lord Diplock,⁵² it is clear this is not a sufficient ground on which to interfere with foreign proceedings,⁵³ as it would be inconsistent with comity.

4.31 In order to be capable of supporting an anti-suit injunction, the substantive equitable right in question must create obligations that apply to the conduct and location of litigation. In Shell v Krys the Privy Council made clear that the fair distribution of assets in insolvency was protected by an equitable right which would be breached by foreign proceedings aimed at producing an unbalanced distribution.⁵⁴ Another important example of such an equity is the third-party ‘quasi-contractual’ situation, where the injunction claimant has an equitable right to enforce a contractual exclusive forum clause against a party who is not bound by that obligation at common law.⁵⁵ Other forms of relevant substantive equity are also possible.⁵⁶ For example, if the grounds of complaint in the foreign action were based on information relied on in breach of a confidence owed in England, an injunction might lie (p. 88) to restrain the use of the confidential information, which would be similar in effect to an anti-suit injunction.⁵⁷

3. Rights and Wrongs in Tort

4.32 It seems unlikely, with the possible but limited exception of claims for procurement of a breach of a jurisdiction clause, that tort obligations will provide a useful general basis for general, non-contractual anti-suit injunctions in respect of foreign proceedings. This is for three reasons. First, the existing torts under English law are confined, and not natural foundations for this purpose. Second, it is uncertain whether these torts should apply to litigation abroad. Third, there may be of choice of law difficulties.

4.33 With respect to tortious causes of action, two English law torts need to be considered: malicious prosecution, and the alleged tort of abuse of civil process.

4.34 The Supreme Court has recently decided in its controversial 5–4 decision in Willers v Joyce that there is a general tort of the malicious prosecution of civil proceedings, which is not confined to limited categories of proceedings.⁵⁸ However, to complete this cause of action, the criticized proceedings must have been brought maliciously, that is without a bona fide reason to bring the proceedings, and without reasonable and probable cause.⁵⁹ In respect of proceedings on the merits, they must have failed,⁶⁰ although this requirement does not generally apply to ex parte applications, arrests, or attachments.⁶¹ The limited and old authorities that suggest this tort can apply to foreign litigation impose the same restrictions.⁶²

4.35 There is authority to support the existence of a tort of abuse of civil process, under which it would be wrongful to use legal proceedings towards an improper end.⁶³ In Land Securities v Fladgate Fielder the Court of Appeal concluded that this tort did not extend to civil proceedings generally and was confined only to limited situations, which would not extend beyond the scope of the tort of malicious prosecution.⁶⁴ But in the light of Willers v Joyce it seems likely that this tort will be expanded to cover civil proceedings generally.⁶⁵

(p. 89) 4.36 The scope of these rights in tort is far narrower than the scope of the general case law on anti-suit injunction. Anti-suit injunctions can, and generally are granted where foreign proceedings are neither malicious nor motivated by a collateral purpose. It follows that such tortious rights are not likely to be generally capable of supporting non-contractual anti-suit injunctions; and they would be an awkward and unsatisfactory basis for the injunction even within their scope.

4.37 It is also questionable whether such English tort law principles make sense as a basis to support anti-suit injunctions in respect of litigation abroad. It may well be that as a matter of English law, torts of this kind should naturally be confined to litigation in England. There are two old authorities which appear to proceed on the assumption that such English law causes of action apply in relation to foreign proceedings, but in both cases the claim in tort was rejected on the ground that the foreign proceedings had succeeded not failed, and that just as in respect of English proceedings, it was necessary to prove the failure of the criticized proceedings.⁶⁶ But it does not appear to have been argued that the tort could not in principle apply to foreign proceedings.⁶⁷ The point has not been considered in modern times, and the torts of malicious prosecution and abuse of civil proceedings have never been applied to anti-suit injunctions against foreign proceedings.⁶⁸ Instead, anti-suit injunctions to restrain foreign proceedings have been granted on equitable bases and subject to their own principles without regard to such torts.

4.38 There would be significant choice of law barriers to applying English law to such alleged torts abroad. In contrast to the position in relation to equitable anti-suit injunctions, tort claims of this kind would fall within the scope of the Rome II Regulation (so long as it remains the law). Applying Article 4(1) of Rome II Regulation, the current case law on the application of the correlate concept ‘the place where the damage occurred’ would suggest that the place where the direct damage occurred was the state where the allegedly malicious or abusive litigation occurred.⁶⁹ It is also uncertain whether such torts could be viewed as ‘manifestly more closely connected’ to English law under Article 4(3). They concern malicious or abusive acts in the foreign jurisdiction causing damage there.⁷⁰ As discussed, there are tenable arguments that the equitable jurisdiction to grant anti-suit injunctions is most closely connected to England, because it is concerned (in general) with protection of English litigation or policies. But, in contrast, these torts are not concerned with whether (p. 90) the foreign litigation was intrinsically wrongful. It will only be in rare cases that litigation before foreign courts will be tortious under the foreign law.⁷¹

4.39 The only situation where the courts have, so far, given credence to the grant of anti-suit injunctions based on tort (leaving aside domestic injunctions) are the limited cases where the tort of inducing a breach of contract, and other economic torts, have been deployed against a third party who controls a party to a contractual forum clause and has directed the contracting party to breach its contractual obligations.⁷² It is possible that such claims will be stymied by the application of choice of law principles.⁷³ However, there is a stronger case for the application of English law than in the case of the torts of malicious prosecution and abuse of civil process. In particular, it would be arguable that a claim for inducing a breach of a contractual forum clause would, under Article 4(3) of the Rome II Regulation, be ‘manifestly more closely connected’ to the contractual forum than the place of the wrongful litigation because the centre of gravity of the issue would be dominated by the contract.⁷⁴

4.40 But in any event, it is not necessary to deploy tortious claims in order to achieve the objective of preventing third parties from procuring breaches of contractual forum clauses, as this can be achieved by other methods.⁷⁵ Anti-suit injunctions based on conventional equitable principles are capable of achieving this without difficulty, and it seems an unnecessary complication to impose an additional layer of tortious jurisprudence onto the question of whether an injunction should be granted.⁷⁶ The true relevance of the tort of procuring a breach of contract may be to whether damages claims should also be available.⁷⁷

4. Injunctions to Enforce the Brussels–Lugano Regime?

4.41 The Brussels–Lugano regime (so long as it continues to apply) creates a closed system of jurisdiction, limiting the circumstances in which a defendant can be sued outside the state of his domicile. This system has been described as giving ‘rights’ to defendants not to be sued (p. 91) outside the defined jurisdictions.⁷⁸ Yet this is a misleading turn of phrase. The Brussels–Lugano regime allocates jurisdiction between courts as a matter of what may be called ‘public’ law; it does not create private rights.⁷⁹ Until recently, it was also clear that any such ‘rights’ were not sufficient to support an anti-suit injunction. In The Eras Eil Actions, Potter J rejected the conclusion that an anti-suit injunction to restrain proceedings in the USA could be founded on a ‘right’ to be sued only according to the rules of the Brussels–Lugano regime.⁸⁰

4.42 However, in Samengo-Turner v Marsh & Maclennan the Court of Appeal concluded that where a freely agreed exclusive jurisdiction clause in favour of the courts of the USA conflicted with the mandatory jurisdiction regime for employees contained in section 5 of the Brussels I Regulation, the employee had a ‘right’ only to be sued according to the terms of section 5, and an anti-suit injunction would be granted to enforce that right and to restrain proceedings in the contractually agreed forum.⁸¹

4.43 This was a surprising decision,⁸² and David Steel J had refused an injunction at first instance. The Court of Appeal appears to have been misled by its mistaken view that the Brussels–Lugano regime granted rights to the employee.⁸³ Further, even if the Brussels–Lugano regime creates ‘rights’ of some sort, it does not regulate the appropriateness of the commencement of proceedings in the USA in any way; and the ‘rights’ it might create are not the sort of rights that can support an anti-suit injunction.⁸⁴ The Court of Appeal reasoned that, once they had concluded that the US exclusive jurisdiction clause would not be given effect in England, it followed that an injunction should be granted, in order to (p. 92) protect the ‘right’ of the employee to be sued at his domicile: ‘doing nothing is not an option’. This is a non sequitur. It has been clear since the rejection of the Castanho heresy⁸⁵ in Aérospatiale that it is not sufficient to justify an anti-suit injunction to conclude that a parallel English action should not be stayed.⁸⁶ The proceedings in the USA were not said to be vexatious or oppressive, and the injunction defendants had a contractual right to proceed there. Consequently, there was no sufficient basis for the grant of an anti-suit injunction; and by intervening by injunction merely to protect a mandatory rule of domestic jurisdictional law, the Court of Appeal paid insufficient respect to comity.

4.44 Such a dramatic arrogation of jurisdiction was not going to go away quietly. In Petter v EMC a similar injunction was sought. Yet again, at first instance the commercial judge, Cooke J, distinguished Samengo-Turner and refused an injunction as a matter of comity and discretion.⁸⁷ The Court of Appeal held that they were bound by Samengo-Turner to grant an injunction.⁸⁸ But their reasoning differed. Of the two commercial judges, Moore-Bick LJ simply applied precedent, while Vos LJ held that he was bound by precedent, but doubted the soundness of the injunction. In contrast, Sales LJ (a public and employment lawyer in a previous life) advanced a sophisticated argument in favour of the solution in Samengo-Turner. He relied on the previous case law under which injunctions could be granted to prevent the litigant’s evasion of the important public policies of the forum (discussed in section I, ‘Protection of English Public Policy, below), and concluded that the Brussels–Lugano regime’s protections for employees reflected a public policy which the English court was bound to protect. Since that policy could only be given effect by an anti-suit injunction, there was ‘considerable force’ in the proposition that one should be granted. Party autonomy, and freedom of contract, was not the only value worthy of respect, and could be overridden. However, Sales LJ did not seek to defend the reasoning in Samengo-Turner, which relied on a supposed legal right derived from the Brussels–Lugano regime.⁸⁹ Permission to appeal was granted but the case settled before the hearing in the Supreme Court.

4.45 It is submitted that Sales LJ’s reasoning based on public policy is unsound,⁹⁰ and that he gave insufficient attention to comity. As a matter of comity, the public policy behind the European mandatory rules, whose force is questionable, may well not justify the interference with the foreign court which the anti-suit injunction creates, and to suggest that it warrants interfering by injunction with the contractually agreed jurisdiction of another country is surprising. Further, relying on public policy on its own as sufficient to justify an anti-suit injunction is a bold step which could pose serious questions of comity, and the case law so far has only envisaged this in cases where the foreign court is being asked to exercise an exorbitantly wide jurisdiction.⁹¹ But there was no attempt in Petter to consider the (p. 93) proper scope of the use of public policy in itself as a ground for an anti-suit injunction, and it is not obvious why the jurisdiction asserted by the US court, pursuant to a freely agreed jurisdiction clause, was in any way exorbitant.

4.46 The adamant protection of English, or European, mandatory rules in Samengo-Turner and Petter, and their use to override contractually agreed jurisdictional clauses, is difficult to reconcile with the converse line of decisions in which the English courts have justified the grant of anti-suit injunctions to enforce exclusive forum clauses in order to override comparable foreign mandatory laws,⁹² on the basis that it was consistent with comity, or indeed demanded by comity, for the courts to enforce the parties’ agreement. Indeed, from an international perspective, it may well be the English courts that have acted exorbitantly in Petter, not the US courts. It is no accident that the English anti-suit injunction led to the unhappy position of clashing anti-suit injunctions issued by both legal systems.⁹³

F. Vexatious or Oppressive Conduct

4.47 Where no substantive legal or equitable right is infringed, an anti-suit injunction will generally only be granted where the foreign proceedings are vexatious or oppressive,⁹⁴ or in alternative language that is sometimes used, unconscionable.⁹⁵ But the concept of ‘the ends of (p. 94) justice’ is not rigidly confined, and there are other situations for the grant of an injunction:⁹⁶ the main examples being where it is necessary to grant the injunction to protect the jurisdiction, processes, or judgments of the English courts, or to protect English public policy.⁹⁷

4.48 It is sufficient that the foreign proceedings are either vexatious or oppressive. It is not necessary to show that they are vexatious and oppressive.⁹⁸ The criteria of vexation or oppression are the most important grounds on which a non-contractual anti-suit injunction may be granted.⁹⁹

4.49 However, a finding of vexation or oppression is not a sufficient condition for the grant of an injunction. The injunction must always serve ‘the ends of justice’, and is in any event a discretionary remedy. The requirements of comity, or the conduct of the injunction claimant, can mean that even vexatious or oppressive foreign proceedings should not be restrained.¹⁰⁰

4.50 The concepts of vexation or oppression should not be restricted by definition.¹⁰¹ However, certain typical forms of vexation can be identified. Fact patterns in which findings of vexation or oppression may be made are explored in Chapter 5. Vexation can be subjective, such as where proceedings are motivated by bad faith or collateral harassment; but it can also be objective, and arise from the nature or effects of the criticized proceedings, while oppression is objective.¹⁰²

4.51 In case law at the end of the nineteenth century, and the beginning of the twentieth century, the concept of vexation was restricted to foreign proceedings which were frivolous or pointless,¹⁰³ or brought mala fide with the intention of harassing the defendant,¹⁰⁴ or bound to fail;¹⁰⁵ and in contrast, proceedings which could give substantial actual benefit to the (p. 95) claimant abroad, and were brought in good faith, were considered not to be vexatious, and would not be restrained by injunction.¹⁰⁶

4.52 However, the modern concept of vexation has expanded to allow that foreign proceedings may be vexatious, even where they bring substantial benefit to the claimant abroad, if the purposes sought to be achieved by the foreign proceedings are illegitimate.¹⁰⁷

4.53 Further, foreign proceedings of substantial benefit to the claimant abroad can be so oppressive as to justify an injunction, if they would involve injustice to the injunction claimant.¹⁰⁸ But in order to justify an injunction, alleged oppression must go beyond mere inconvenience to the injunction claimant, and must include some element of injustice.¹⁰⁹

4.54 Perhaps the most common example of oppression is where the injunction defendant has initially participated in the English litigation and now seeks a second bite of the cherry elsewhere.¹¹⁰ Another example of possible oppression is where related third-party proceedings should, in the interests of justice, be heard together with the main proceedings, and this is possible in the natural forum but impossible in the foreign forum.¹¹¹ Foreign proceedings can also be made oppressive if the jurisdiction asserted by the foreign court would be excessive.¹¹² But simply choosing to ignore the English forum, not to submit to the English action, and to litigate in another forum in which legal advantages are available, is not in itself oppressive.¹¹³

4.55 The modern purpose of the concepts of vexation and oppression is to set a high threshold for the grant of an anti-suit injunction,¹¹⁴ and to discourage the court from granting the potentially exorbitant remedy of an injunction whenever it might seem at first sight ‘just and convenient’ to do so. From this perspective, the criteria of vexation or oppression are part of the defences of comity.

G. Unconscionable Conduct

4.56 In Turner v Grovit, Lord Hobhouse contended that the primary test for the grant of an anti-suit injunction is whether the injunction defendant’s conduct is ‘unconscionable’.¹¹⁵ (p. 96) The notion of unconscionable conduct is a synonym for conduct that is ‘contrary to equity and good conscience’.¹¹⁶

4.57 The introduction of this alternative phraseology has caused difficulties in the statement of the test. The simplest approach would have been to stick with Lord Goff’s concepts of ‘the ends of justice’ and ‘vexation or oppression’ as formulated in Aérospatiale. This has been the approach taken in the subsequent House of Lords, Supreme Court, and Privy Council cases that have considered the test.¹¹⁷ The influential summary of the law by the Court of Appeal in Deutsche v Highland essentially restated Lord Goff’s tests, without use of unconscionable conduct.¹¹⁸ Lord Hobhouse’s speech in Turner v Grovit was itself obiter, and although it did pick up the language used in the earlier decisions in British Airways v Laker and South Carolina,¹¹⁹ those decisions were regarded as superseded by Aérospatiale by the House of Lords in Donohue v Armco.¹²⁰ The balance of the recent Court of Appeal decisions also tends in favour of Lord Goff’s language,¹²¹ which was used in the Privy Council’s recent decision in Shell v Krys,¹²² and this is the tendency in the recent first instance case law.¹²³ It is therefore arguable that Lord Goff’s tests should be viewed as established as being the law as a matter of precedent.

4.58 It is suggested that the language of ‘the ends of justice’ is also to be preferred as a matter of principle. Using unconscionability as the primary test brings with it the danger of excessive closeness to the historical equitable legacy of the common injunction.¹²⁴ It is also arguably a legal fiction. In many cases where anti-suit injunctions are granted, there is no real sense in which the injunction defendant’s conscience is or should be engaged. ‘Unconscionable conduct’ fits particularly poorly as a way to describe situations where the injunction is granted to protect the jurisdiction of the English court, or English public policy. Further, the language of ‘the ends of justice’, or ‘vexation and oppression’ is a more appropriate way to frame (p. 97) those cases where features of the foreign litigation warrant the imposition of an injunction. The greater suitability of Lord Goff’s tests is illustrated by the fact that in a number of cases where the concept of unconscionable conduct has been formally applied, it has merely served as a redundant, higher-level conceptual shell for the application of the underlying test of vexatious or oppressive behaviour.¹²⁵

4.59 In addition, although Lord Hobhouse articulated the notion of ‘unconscionable conduct’ to focus attention on the ‘wrongful conduct of the individual’,¹²⁶ it is submitted that this risks oversimplification. Anti-suit injunctions are not merely a matter of private law, but also inescapably involve public interests, because of the tensions with comity that they produce. Locating the concept of the ‘ends of justice’ at the heart of the relevant test compels the court to address not merely the conduct of the injunction defendant, but also the ends of justice as a whole.¹²⁷

4.60 However, following Turner v Grovit, the concept of unconscionable conduct found its way into a number of summaries of the law advanced in the Court of Appeal, sometimes as a substitute test, or sometimes as a synthetic test blended together with Lord Goff’s concepts, in which unconscionable conduct stands either in the place of ‘the ends of justice’ or more commonly as an intermediary concept underneath ‘the ends of justice’, but sitting above and including ‘vexation or oppression’ and protection of the jurisdiction of the court.¹²⁸ This synthesis appears to have been driven by a desire to meld the two strands of the case law, although it is submitted that they are not capable of full reconciliation, but differ, at least in abstract. Yet it appears to have occurred without argument to the contrary, and in particular without it being contended that the Aérospatiale language was to be preferred.

(p. 98) 4.61 The most commonly cited summary of this kind comes from the judgment of Rix LJ in Glencore v Metro, where he summarized the essential test as being:

… jurisprudence has limited the conditions under which such an injunction may be regarded as ‘just and convenient’. The following conditions are necessary. First, the threatened conduct must be ‘unconscionable’. It is only such conduct which founds the right, legal or equitable but here equitable, for the protection of which an injunction can be granted. What is unconscionable cannot and should not be defined exhaustively, but it includes conduct which is ‘oppressive or vexatious or which interferes with the due process of the court’ [per Lord Brandon of Oakbrook, South Carolina at 41D]. The underlying principle is one of justice in support of the ‘ends of justice’ [per Lord Goff of Chieveley, Société Aérospatiale at 892A, 893F]. It is analogous to ‘abuse of process’; it is related to matters which should affect a person’s conscience [per Lord Hobhouse of Woodborough, Turner v Grovit at para 24].¹²⁹

4.62 Separately, some of the case law, including a passing comment of the House of Lords in Airbus v Patel, has suggested that the concept of ‘unconscionable conduct’ may be the test in respect of ‘single forum’ injunctions, even if it is not appropriate elsewhere.¹³⁰ In part this is historical accident; the single forum cases just happened to be ones in which the concept of unconscionable conduct was used.¹³¹ It also reflects the debate, discussed elsewhere,¹³² about whether the anti-suit injunction is based on an underlying legal or equitable right. One possible solution to that debate, reflected currently in the Court of Appeal’s decision in Masri v Consolidated Contractors (No 3), is that while alternative forum injunctions need not enforce an underlying substantive equitable right, single forum injunctions may depend on such a right, and accordingly Lawrence Collins LJ concluded that single forum injunctions might need to be ‘fitt[ed] … into the mould of The Siskina by a right based on unconscionable conduct’.¹³³ However, this work has suggested previously that in principle a substantive underlying equitable right may well not be necessary even for a single forum injunction.¹³⁴ Further, the language of vexation or oppression is entirely workable for single forum cases as well and has been used for that purpose in various authorities;¹³⁵ while Lawrence Collins LJ’s comments about single forum injunctions were obiter, and may well not reflect his concluded opinion. And given the fluidity of the boundary between single and alternative forum injunctions, a differentiated test would not be helpful.

4.63 For the hard-pressed textbook writer these conflicting strands of case law create a rat’s nest of precedent that is awkward to resolve. But, as already noted, the post-Turner statements (p. 99) of the House of Lords, Supreme Court, and Privy Council, what seems to be the balance of the recent Court of Appeal authorities, and also the bulk of the recent first instance decisions, use approaches essentially derived from Aérospatiale, Deutsche v Highland, and Lord Goff’s thinking, and not Turner v Grovit; while the use of the ‘synthetic’ approach seems to be diminishing.¹³⁶

4.64 These two different ways of phrasing the law, as summarized in Deutsche v Highland and Glencore v Metro, are not very different in substance or result. Indeed, in some cases, including Star Reefers, the courts have simply cited both summaries and applied them indifferently.¹³⁷ But they are not the same conceptually, and for a coherent statement of the law it is better to choose, and desirable to simplify. It is hoped that the Supreme Court will do so in due course. For the reasons given, it is the suggestion of this work that the essence of Lord Goff’s approach in Aérospatiale is to be preferred, both as a matter of principle and precedent, both to Lord Hobhouse’s approach and to the ‘synthetic’ approach.

4.65 But there is no real objection to including ‘unconscionable conduct’ as one instance of a situation where an anti-suit injunction may be granted.¹³⁸ So to reflect those decisions granting anti-suit injunctions on the basis of ‘unconscionable conduct’, a pragmatic course is to include that phrase alongside ‘vexation or oppression’, as one of the typical situations in which an anti-suit injunction can be granted, or as an alternative form of language to describe essentially the same notions.¹³⁹ However, it should neither replace the overarching notion of the ends of justice¹⁴⁰ nor be used as an intermediate overarching concept under which ‘vexation or oppression’ must be placed. It is this compromise that has been used in the summary at para 4.05.

H. Interference with the Processes, Jurisdiction, or Judgments of the English Court

4.66 An injunction may also be granted if the foreign proceedings are an illegitimate¹⁴¹ interference with the processes, jurisdiction, or judgments of the English court,¹⁴² or if an (p. 100) injunction is necessary for the protection of the processes, jurisdiction, and judgments of the English court,¹⁴³ provided, of course, that it is in the interests of justice to do so.¹⁴⁴ If an anti-suit injunction is justified on this basis it is not necessary independently to show vexation or oppression,¹⁴⁵ and although vexation and oppression will often overlap in practice with illegitimate interference, they are not the same conceptually.¹⁴⁶

4.67 Further, when an injunction of this kind is being considered, it is not generally necessary separately to demonstrate that England is the natural forum. The logical basis of the injunction is that the English court’s jurisdiction needs to be protected, and if that is necessary then an injunction is legitimate whether or not the English court is the natural forum for the underlying litigation. The English court is the only appropriate court to assess the question of whether its processes need protection, and clearly has a ‘sufficient interest’ in doing so.¹⁴⁷ This point is blurred over (obiter) in some of the summaries of the law that have been given,¹⁴⁸ but if one goes back to bedrock, the distinction is clearly visible in Lord Goff’s analysis in Aérospatiale.¹⁴⁹

(p. 101) 4.68 Reasoning akin to this head of jurisdiction has sometimes been phrased in terms of whether the foreign proceedings were an ‘abuse of process’ of the English court.¹⁵⁰ But language of this kind may cause confusion, if all that is happening is litigation abroad, and so there is no actual abuse of the English court’s own process. In Wilson v Emmott the Court of Appeal therefore discouraged this phrasing as a way of framing the issues generally in play.¹⁵¹ However, there may be situations where the inter-relation between foreign and English litigation creates an abuse of the process of the English courts.

4.69 Illegitimate interference with the processes and jurisdiction of the English court can include seeking to relitigate the merits abroad where a matter has been decided in England, or where it could and should have been decided in the English litigation,¹⁵² or an illegitimate collateral attack on the effectiveness of the judgment of the English court.¹⁵³ It can also include foreign proceedings which harmfully distort the normal evidence-gathering procedures of an English trial.¹⁵⁴ Foreign anti-suit injunctions to restrain proceedings in England, if contrary to comity, can also amount to an illegitimate interference.¹⁵⁵

Injunctions to protect the jurisdiction of the English court have been granted to restrain creditors from interfering with the forum’s insolvency jurisdiction, and its policy of orderly and fair distribution among creditors, by bringing proceedings abroad with the aim of upsetting such distribution.¹⁵⁶

(p. 102) 4.70 This type of justification for an anti-suit injunction also enables the grant of injunctions to restrain illegitimate interference with an English arbitration, or to prevent an illegitimate collateral attack on, or vexatious relitigation of, an English arbitration award.¹⁵⁷

I. Protection of English Public Policy

4.71 In Shell v Krys the Privy Council has recently given some endorsement to a limited strand of authority (for the most part obiter) which suggests that an injunction may be granted where it is necessary to protect important public policies of the forum.¹⁵⁸ But in a number of cases, the public policy relied upon has been held not to be sufficient to justify an injunction.¹⁵⁹ Whether and if so when a sufficiently important and germane public policy can be an independent ground for anti-suit injunctions (within the overall assessment of what the ends of justice require), or a major factor contributing to it being appropriate to grant an injunction when combined with other factors, is not as yet settled. Different formulations have been used. In some cases where the possibility has been addressed, the focus has been ‘whether an injunction is required to protect the policies of the English forum’ or to ‘prevent the evasion of the important public policies of the forum’.¹⁶⁰ In others, narrower formulations have been articulated. So in Stichting Shell v Krys the Privy Council referred to situations where ‘the judicial or legislative policies of England and the foreign court are so at variance that comity is overridden by the need to protect British national interests or prevent what it regards as a violation of the principles of customary international law’. However, those narrower yardsticks were not clearly stipulated as necessary conditions.¹⁶¹ We are at a very (p. 103) early stage in the development of this area of the law, and the language of Krys should not be read as a statute. Indeed, the reasoning of Krys itself is not entirely clear on whether public policy is being treated as a free-standing ground to justify an injunction, or rather as a strong and indeed decisive supporting ground for an injunction justified on other equitable grounds, which contributes to the conclusion that the injunction is consistent with comity—and essentially the same reasoning could have been framed without reference to policy within the overlapping concept of the need to protect the jurisdiction of the court. So the correct approach to public policy remains to be settled. It is suggested that as a matter of principle, anti-suit injunctions justified solely on the ground that the claims abroad would contradict the public policies of the forum may pose real questions of tension with comity, and it may well be that they will only be appropriate in unusual cases. It is perhaps illustrative of how things will develop that the bulk of the case law indicates that injunctions on grounds of public policy have generally only been envisaged where what the foreign court is being asked to do would be exorbitant from an international perspective.¹⁶² Thus, the mere fact that foreign choice of law rules or substantive law are different cannot justify an injunction.¹⁶³ However, where there is a genuine need to protect English policy and the matter is sufficiently within the legitimate sphere of intervention of the English court that the grant of an injunction would be consistent with comity, there is no reason in principle why a need to protect public policy could not be a powerful, and even decisive, factor in support of the conclusion that the grant of an injunction is in the interests of justice.

J. Forum non Conveniens

4.72 It was for a brief interlude considered to be the law that an anti-suit injunction could be granted on the ground that the English court was the most natural forum and the foreign court was not. It is now clear this is not the law.¹⁶⁴ Although the inappropriateness of the (p. 104) foreign forum can be a factor in support of a conclusion that the injunction defendant’s litigation is vexatious or oppressive,¹⁶⁵ the mere fact that the English court perceives the foreign forum as less appropriate than England cannot be sufficient ground for an injunction in itself, unless the inappropriateness goes further, and contributes to vexation or oppression.¹⁶⁶

K. Legitimate and Illegitimate Advantages

4.73 Since the court is concerned with the ends of justice, account must be taken not only of injustice to the injunction claimant if the injunction defendant is allowed to pursue the (p. 105) foreign proceedings, but also of injustice to the injunction defendant if he is not allowed to do so. So the court will not grant an injunction if, by doing so, it will deprive the injunction defendant of advantages in the foreign forum of which it would be unjust to deprive him.¹⁶⁷ But only credible legitimate advantages are to be given weight; it is not unjust to deprive an injunction defendant of illegitimate or theoretical advantages,¹⁶⁸ or of purported advantages which are ‘hopelessly and cynically invoked’.¹⁶⁹ Some cases have assessed whether the balance of legitimate advantages, or the ‘balance of injustice’,¹⁷⁰ is in favour of the foreign proceedings continuing.¹⁷¹ But the concept of legitimate advantages is best seen as a control to be weighed in the balance; it should not be a central analytical concept defining the basis of the injunction, and that would not be consistent with principle. So the mere absence of apparent legitimate advantages does not automatically justify an injunction on its own as that would overlook the important restraining influence of comity.¹⁷²

4.74 If the foreign forum is not an inappropriate forum for the litigation, then significant differences in the law or procedure to be applied there, such as the availability of higher damages, or a broader disclosure regime, or more favourable rules of substantive law,¹⁷³ can be legitimate advantages for the injunction defendant. If, however, the foreign forum is clearly inappropriate, then those same differences may well be illegitimate, and can contribute to a finding of vexation or oppression.¹⁷⁴ Further, not all peculiarities of the foreign forum will be legitimate advantages, even if it is not an inappropriate forum. For example, it has been held that where a matter raises complex questions of fact and law it is not a legitimate advantage that it will be tried by jury.¹⁷⁵

4.75 Similarly, it is a legitimate advantage to have issues of foreign law determined in the courts of the relevant state,¹⁷⁶ provided that the foreign law is an appropriate law to govern the substantive dispute. Accrued procedural advantages in the foreign jurisdiction can also be (p. 106) legitimate advantages. Thus, it has been held to be a legitimate advantage to have arrested property in the foreign jurisdiction, if the cessation of the foreign action could endanger the security,¹⁷⁷ although any weight will depend on the circumstances. If the injunction defendant has rights which are not time-barred abroad but are time-barred in England, this may be relevant; but whether it is treated as a legitimate advantage, and any weight, has in some decisions depended on whether the injunction defendant has created his own difficulty, and taken the risk of being time-barred in England, by his conduct in proceeding abroad.¹⁷⁸ Further, it is a legitimate advantage to be able to bring contribution proceedings in the foreign jurisdiction which could not be brought in England.¹⁷⁹

4.76 In appropriate cases, potential injustice to the injunction defendant may be circumvented by requiring undertakings from the injunction claimant, or granting the injunction on terms, so as to ensure that the injunction defendant is not unjustly prejudiced.¹⁸⁰

L. Comity

4.77 In exercising the power to grant an anti-suit injunction, regard must be had to the principles of comity, which impose limits on the grant of the injunction.¹⁸¹ Anti-suit injunctions will, in general, not be granted where to do so would be inconsistent with due respect for comity.¹⁸² As a result, the tests for anti-suit injunctions are not the obverse of the tests for stays of English proceedings: a higher level of justification is required to warrant interference.¹⁸³ The usual level of respect due to comity can be diminished or displaced in certain circumstances, discussed below, but (outside the contractual situation) these are rare.¹⁸⁴

4.78 The underlying principles of comity, which find their centre in the mutual respect due between courts and legal systems,¹⁸⁵ are discussed in Chapter 1, section C, ‘Anti-Suit (p. 107) Injunctions in Other Legal Systems’. They influence the whole of the law on anti-suit injunctions. There are, however, a set of distinct constraints on the grant of the injunction which can be seen as the most direct emanations of comity; they are discussed in this section.

1. Non-Intervention and Caution

4.79 The respect due to the foreign court means that the English court should not interfere, even indirectly, with the foreign court’s policies and processes unless necessary.¹⁸⁶ Consequently, as an anti-suit injunction indirectly affects the foreign court,¹⁸⁷ the power to grant such an injunction must be exercised with caution,¹⁸⁸ save where the foreign proceedings are in breach of contract.¹⁸⁹ However, there will be no interference, and thus no reason for caution, in the occasional cases where it is apparent that the foreign court is willing to defer to the English court’s views as to whether the foreign proceedings should continue.¹⁹⁰ It has also been suggested that, where the foreign jurisdiction itself exercises the power to grant anti-suit injunctions, the English court should pay little regard to allegations that the foreign court would be offended by a proper use of the remedy.¹⁹¹

(p. 108) 2. Sufficient Interest or Connection

4.80 The respect due to the foreign court also means that, in general, the English court must have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign court that an injunction involves.¹⁹² A contractual clause providing for the exclusive or inclusive jurisdiction of the English courts will, however, generally establish a sufficient interest over connected matters.¹⁹³ The concept of sufficient interest includes, and corresponds to, the point that for an injunction to be granted ‘there must be a good reason why the decision to stop the foreign proceedings should be made here rather than there’.¹⁹⁴

4.81 In alternative forum cases,¹⁹⁵ where an injunction is sought on the basis that the foreign litigation is vexatious or oppressive, the requirement of a sufficient interest means that consideration must be given to whether the English court is the natural forum for the litigation. Indeed, it has often been said that in such cases an injunction will not, in general, be granted unless the English court is the natural forum for the resolution of the substantive disputes between the parties¹⁹⁶—or perhaps the natural forum to resolve the question of forum.¹⁹⁷ (p. 109) However, on a close reading of Airbus v Patel we can see that Lord Goff’s more developed conclusion was that ‘any limiting principle requiring respect for comity cannot simply be expressed by reference to the question whether the English court may be the natural forum for the dispute’, and that the true concept was ‘sufficient interest’. As a result, even in alternative forum cases he preferred to use ‘natural forum’ merely as a factor, not a requirement, saying that in an ‘alternative forum’ case, assessing whether the general requirement of ‘sufficient interest’ is satisfied ‘will involve consideration of the question whether the English court is the natural forum for the resolution of the dispute’.¹⁹⁸ In any event, natural forum is relevant as a criterion or consideration only ‘generally’ and not rigidly. No criterion of natural forum applies to injunctions sought to protect the processes, jurisdiction, and judgments of the English court, as already explained.¹⁹⁹ Nor does it apply in single forum cases. Further, contrary to some erroneous suggestions to the contrary, it is not necessary for there to be actual litigation in England which the injunction is sought to protect: there are numerous cases where free-standing anti-suit injunctions have been granted, such as single forum injunctions, injunctions to protect prospective English proceedings, and injunctions to restrain winding-up proceedings.²⁰⁰ The concept of natural forum is further explored in section M, ‘Natural Forum’.

4.82 In single forum cases,²⁰¹ the concept of ‘sufficient interest’ has not yet been fully explored. However, a sufficient interest may (for example) potentially be provided if the substantive disputes can be characterized as dominantly English in character, by reason of the nationality or residence of the parties, the place where their dealings occurred, or the law to which they subjected their dealings.²⁰² A sufficient connection may also exist if the injunction is necessary to protect the jurisdiction of the English court,²⁰³ or English public policy.²⁰⁴ In these situations, the English court will be the appropriate court to decide questions of (p. 110) forum, which is another way of expressing the criterion of sufficient interest in the single forum situation.²⁰⁵

4.83 The English court will, in general, not have a sufficient interest in restraining proceedings in a second country, in order to protect litigation in a third country, to justify the grant of an injunction,²⁰⁶ even if the second country is the natural forum but is itself unable to grant effective injunctive relief.²⁰⁷ If the courts of the second country have requested the intervention of the English court, this may give the English court some interest in intervention, but even so, the respect owed to the courts of the third country means that this interest is unlikely to suffice.²⁰⁸ Further, the same result cannot be achieved by the back door by obtaining an anti-suit injunction in the preferred foreign court and then seeking to enforce it in England, as the foreign anti-suit injunction will not be enforceable in England.²⁰⁹

3. Amenable to the Jurisdiction

4.84 It has frequently been said that it is a consequence of comity that an injunction will only be granted to restrain a person who is regarded as properly amenable to the jurisdiction of the English courts, against whom an injunction will be an effective remedy.²¹⁰ However, it was not entirely clear what this meant. The case law has now made clear that it means only that the court must have personal jurisdiction over the defendant to hear the claim for an injunction. It therefore adds little or nothing.²¹¹

(p. 111) 4.85 The injunction defendant’s ‘amenability’ to the jurisdiction can also be understood as a label for the idea that the injunction must be an effective remedy with respect to the particular defendant in question. However, again, this appears to have disappeared as a separate requirement. It had previously been suggested that it is a necessary condition of granting the anti-suit injunction that it can be enforced against the injunction defendant, either because that defendant is or will be present within the jurisdiction, or because he, she or it has or will have assets here.²¹² But the recent decisions have not required this to be shown separately. The bold position adopted in the lead modern cases is that, in general, the court does not contemplate the possibility that its order will not be obeyed,²¹³ and injunctions have frequently been granted to restrain defendants who are not resident in England and have no assets in the jurisdiction, even where there was no specific basis to assume that the English injunction order could be enforced abroad.²¹⁴ It remains the case that the potential unenforceability of an order, because the defendant and all his assets are out of the jurisdiction, is a matter of which the court can take account when considering whether it should grant the remedy in its discretion.²¹⁵ But there would appear to be no meaningful separate requirement of amenability in this regard either, for anti-suit injunctions. The cases reflect little more than the weak general proposition, true of injunctions generally, that the court will, in the exercise of its discretion, be disinclined to make orders which are futile.²¹⁶

4. Comity and Discretion in General

4.86 The requirements of comity will also shape and influence the court’s exercise of its discretion whether or not to grant an injunction, in ways that are not always captured by the threshold tests which have so far been explored.

Thus, the closer the connection of the litigation with England and the English court, and the more tenuous the link to the foreign jurisdiction, the weaker will be the inhibitions imposed by comity on the grant of the injunction,²¹⁷ while conversely, the more distant the (p. 112) connection to England, or the closer the connection to the foreign state, the greater the restraint to be exercised.²¹⁸ For example, where the underlying dispute concerns real property in the foreign jurisdiction, an anti-suit injunction is unlikely to be granted.²¹⁹ The US courts have concluded that injunctions should not generally be granted to restrain foreign proceedings concerning patents of the foreign state in question.²²⁰ Similarly, if the injunction claimant has voluntarily brought its relations with the injunction defendant within the legitimate sphere of interest of the foreign law and legal system, then that will militate against the grant of an injunction.²²¹

4.87 If there is evidence that the foreign court is likely, and with some system-independent justification, to regard the grant of an anti-suit injunction as an illegitimate interference, this may support an argument that comity requires that the injunction should not be granted.²²² However, the Court of Appeal has recently suggested that the force of such arguments has diminished;²²³ and in any event it is doubtful that this reasoning applies in contractual cases.²²⁴

4.88 Delay in seeking an injunction can have important consequences for comity, and can be a powerful factor against the grant of an injunction, because the interference with the foreign court’s jurisdiction is the greater if the foreign proceedings have been underway and the judicial resources of the foreign court have been used. Consequently, delay can defeat an injunction independent of prejudice to the injunction defendant.²²⁵

5. Bypassing or Overriding Comity

4.89 Comity is a mutual obligation. Consequently, the conduct of the foreign state can deprive it of the respect normally required by comity, and if so, the limits imposed by comity will be diminished or displaced.²²⁶ Notably, an excessive assertion of jurisdiction by the foreign court may reduce the respect due to its processes.²²⁷

(p. 113) 4.90 Further, a breach of comity by the foreign court can amount to a positive factor in support of an injunction. If the foreign court’s assumption of jurisdiction is excessive, this can amount to, or support a finding of, vexation or oppression.²²⁸

4.91 However, it will be difficult to view an assertion of jurisdiction by the foreign court as excessive if the English courts would assert jurisdiction extraterritorially in an analogous case.²²⁹ It is also clear that the mere fact that the foreign court does not apply a doctrine analogous to forum non conveniens is insufficient in itself to permit the inhibitions imposed by comity to be displaced.²³⁰

4.92 Conversely, it has been suggested that, even where the foreign state’s conduct has not displaced comity, the inhibitions that comity would otherwise impose can be overcome if the legislative policies of the English legal system and the foreign legal system are so at variance that comity is overridden by the need to protect the national interest.²³¹ However, this will only be relevant in rare cases.²³² The principle of mutual respect enshrined in the concept of comity means that the foreign court must presumptively be entitled to give effect to the policies of its own national legislation, even if they conflict with the solution reached by English law,²³³ provided that there has been no excessive assertion of jurisdiction by the foreign court, or the foreign proceedings are not otherwise vexatious or oppressive. The English court will be reluctant to criticize the quality of justice available in the foreign forum, and arguments of this kind will require cogent evidence.²³⁴

M. Natural Forum

4.93 In alternative forum cases, the requirement of a sufficient interest means that an injunction on grounds of vexation and oppression will not normally be granted unless the English court is the natural forum for the resolution of the substantive disputes between the parties.²³⁵ The concept of ‘natural forum’ has often been expressed as a general requirement of such vexation and oppression-based alternative forum injunctions. But even viewed in that way, it was only a general and not absolute requirement;²³⁶ and it can be departed from when appropriate.²³⁷ Further, as discussed at para 4.81 above, the better view on a close reading of Airbus v Patel is that ‘natural forum’ is only an important factor, and not a requirement. Lord Goff rephrased the point as merely being that in alternative forum cases (p. 114) the assessment of ‘sufficient interest’ will involve ‘consideration’ of the question of whether the English court is the natural forum for the resolution of the dispute.²³⁸ The general requirement of sufficient interest can be satisfied in other ways.²³⁹ Further, in the recent case law there are signs that the concept of natural forum is expanding, so that in appropriate cases it will also suffice for this purpose if the English court is the natural forum to decide the question of forum,²⁴⁰ and not merely the natural forum for the litigation. So, for example, the English court is the natural forum to grant injunctions to protect English arbitrations,²⁴¹ and it should not matter that it would not be able itself to hear the matter submitted to arbitration. However, in classic alternative forum situations, where an injunction is sought on the basis of vexation and oppression, the question of natural forum will be a central consideration, and failure to satisfy it will generally be determinative.²⁴²

4.94 Any criterion or consideration of natural forum does not, it seems, apply to injunctions granted to protect the processes, jurisdiction, and judgments of the English court,²⁴³ nor to injunctions grounded on public policy, or to single forum injunctions.

4.95 The concept of natural forum for the trial of the action is derived from the case law on permission to serve claims out of the jurisdiction, and applications to stay English proceedings on the grounds of forum non conveniens.²⁴⁴ The natural forum in this sense is ‘that with which the action had the most real and substantial connection’,²⁴⁵ or, otherwise phrased, is the appropriate forum for the trial of the action.²⁴⁶ In assessing which forum is natural in this sense, the court will evaluate the factors connecting the litigation with a particular forum, including factors affecting convenience or expense, but also other factors such as the law governing the relevant transaction,²⁴⁷ the location of relevant property,²⁴⁸ and the places where the parties respectively reside or carry on business.²⁴⁹ In the recent case of Re Tadros, for example, it was unsurprisingly concluded that the Netherlands was the natural forum for deciding matters relating to a Dutch will.²⁵⁰

(p. 115) 4.96 The natural forum for the purposes of forum conveniens will, if nothing has changed, generally be the natural forum when considering whether or not to grant an anti-suit injunction.²⁵¹ However, a court which was not originally the natural forum for a particular claim can become the natural forum due to the progress of litigation before it on the claim in question, or on related claims.²⁵²

4.97 There is often no one forum that is clearly more appropriate than others,²⁵³ and in considering whether to grant an injunction, the court will take account of different shades of appropriateness in assessing vexation and oppression. Thus, even where England is the natural forum, it will weigh against a finding of vexation that the foreign court is an appropriate forum.²⁵⁴

N. Other Discretionary Considerations

4.98 The flexibility of the concepts of ‘the ends of justice’ and ‘vexation and oppression’, and the tests of comity mean that there is less conceptual room for the operation of distinct discretionary factors. Most considerations which are relevant to whether an injunction should or should not be granted can be articulated within an assessment of whether it is ‘in the interests of justice’ to grant an injunction,²⁵⁵ although the distinction between a finding of vexation and oppression and the assessment of discretion is more easily drawn. Nevertheless, the injunction always remains a discretionary remedy which responds to all the circumstances.²⁵⁶

4.99 The exercise of the court’s discretion, which always depends on all the facts of the case, cannot be sensibly summarized in a textbook. Nevertheless, there are certain recurrent types of situation which have been treated as distinctly relevant to the exercise of the court’s discretion, and which do not fall naturally under one of the tests discussed, perhaps because they are essentially practical problems, and less redolent of ‘justice’.

4.100 Thus, injunctions have been refused because of undue and unjustified delay,²⁵⁷ or conversely, because the injunction was sought prematurely.²⁵⁸ The injunction claimant’s conduct in the competing proceedings can also disentitle him to relief, in particular if he can be said to be acting in a vexatious or oppressive way himself.²⁵⁹ If the order sought is likely (p. 116) to be futile,²⁶⁰ or if the same result can be achieved by less intrusive means, such as a declaration,²⁶¹ the court will be less likely to grant an injunction. Anti-suit injunctions can also be refused on the grounds that the injunction claimant has ‘unclean hands’, although strictly this is a matter of equitable principle, not discretion.²⁶²

O. Quia Timet

4.101 Anti-suit injunctions may be granted on a quia timet basis even before the targeted proceedings have commenced, if there is sufficient threat that they will be commenced; and that if so, they will be of a nature which will justify the injunction.²⁶³ In one case, a mere reservation of rights to bring proceedings was held not to be sufficient to justify a quia timet injunction.²⁶⁴

Footnotes:

¹ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC). However, Lord Goff’s requirement that the injunction defendant must be ‘amenable to the jurisdiction’ (892E) has turned out to be constraint that is at best mild, and arguably empty. The modern position is that if personal jurisdiction is obtained, the injunction defendant is ipso facto ‘amenable’. There is no additional requirement that the injunction defendant be ‘amenable’ in the sense of being exposed to the court’s territorially confined powers to punish: Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [27]–[39], and paras 4.84–4.85 below.

² Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50].

³ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 895–96.

⁴ Ch 7, para 7.19; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

⁵ Injunctions to restrain arbitration proceedings are addressed in Ch 11.

⁶ The main authorities on which this summary is based are: Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC); Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J and CA); Airbus Industrie v Patel [1999] 1 AC 119 (HL); Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA); Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC); and to a lesser extent (where it has been necessary to choose) Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [41]–[42]. Aspects of the Glencore summary are, however, inaccurate: see paras 4.64, 4.80 n 192, 4.81 n 200.

⁷ It has been held that an anti-suit injunction may be granted to protect a ‘right’ to be sued only according to the system of jurisdiction contained in the Brussels–Lugano regime: Samengo-Turner v J&H Marsh & McLennan (Services) [2007] ILPr 52 (CA); but this is wrong: see paras 4.41–4.46 below.

⁸ See Ch 7.

⁹ The question of whether (5) is logically an example of (4) is discussed at paras 4.26–4.28 below and in Ch 3, section B, ‘A Legal or Equitable Right?’.

¹⁰ For the history of this debate, see Ch 2, paras 2.29–2.35.

¹¹ The summary in para 4.05 is based principally on Lord Goff’s thinking, but with the addition of the concept of unconscionable conduct, as an alternative phraseology, to reflect its use as one strand of the case law. The reasons why Lord Goff’s tests are preferred are set out at paras 4.56–4.64 below.

¹² Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]. For recent examples see Kemsley v Barclays Bank [2013] EWHC 1274; Re Tadros [2014] EWHC 2860 [45], [71]–[84]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC).

¹³ The effect of Brexit is addressed in Ch 1, section I; Ch 12, section A; and also Ch 16, section B.

¹⁴ Carron Iron v Maclaren (1855) 10 ER 961, 5 HLC 416, 437; British Airways Board v Laker Airways [1985] AC 58 (HL) 81D; Midland Bank v Laker Airways [1986] QB 689 (CA) 701H–702A; Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J) 687–88; quoted with approval in Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 107. In general, English principles of equity have been assumed to apply without discussion. It has never been suggested in the case law that foreign law should apply. For the equitable nature of the anti-suit injunction, see Ch 3, section A, ‘The Power to Grant Injunctions’.

¹⁵ Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J) 687–88.

¹⁶ See Ch 7, section D, ‘Choice of Law’.

¹⁷ Lord Cranstown v Johnston (1796) 3 Ves Jun 170, 30 ER 952, 958–59; In re Courtney, Ex parte Pollard (1838–40) Mont & C 239, 250–51; Carron Iron v Maclaren (1855) 10 ER 961, 5 HLC 416, 437; Re Anchor Line (Henderson Bros) [1937] Ch 483, 488; RH Graveson, ‘Choice of Jurisdiction and Choice of Law in the English Conflict of Laws’ (1951) 28 BYBIL 273, 277; see also El Ajou v Dollar Land Holdings [1993] 3 All ER 717, 736, reversed on other grounds [1994] 2 All ER 685 (CA). This is the approach still taken today in Australia: Paramasivam v Flynn (1998-99) 160 ALR 203, 214–18 (Aus Fed Ct) [2001] NSWSC 29 [100]–[104] (‘arguable’ that this is the position).

¹⁸ See Macmillan v Bishopsgate Investment Trust (No 3) [1995] 1 WLR 978, 989D, [1996] 1 WLR 387 (CA) 402D–E (disapproving of the lex fori approach taken in Australia and Canada) 407C, 408A; Base Metal Trading v Shamurin [2004] ILPr 5 [43]–[44] (reversed, but not on this point, [2005] 1 WLR 1157 (CA)); Oil Company Yugraneft v Abramovich [2008] EWHC 2613 [170]–[223].

¹⁹ OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[25] and para 4.38 below.

²⁰ L Collins et al (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012), paras 34-083–34-090 (hereafter ‘Dicey’).

²¹ Actavis UK v Eli Lilly [2016] RPC 2 (CA) [133]. See also the Commission Proposal for Rome II, 24.

²² Article 4(2) creates a default rule where both parties are resident in the same country.

²³ Rome II, Recital 17; Commission Proposal on Rome II, 11; Dicey, para 35-024.

²⁴ Actavis UK v Eli Lilly [2016] RPC 2 (CA) [143]. So far as concerns Article 15(c), which covers: ‘the existence, the nature and the assessment of damage or the remedy claimed’, this applies only to financial remedies, as explained in Actavis at [142].

²⁵ Arguments for the application of foreign law are presented by C Sim, ‘Choice of Law and Anti-Suit Injunctions: Relocating’ (2013) 63 ICLQ 703.

²⁶ See A Dickinson, ‘The Rome II Regulation’ (2008), para 4.111.

²⁷ In Committeri v Club Méditerranée [2018] EWCA Civ 1889 [30]–[32], the Court of Appeal said, obiter, that anything that was not contractual would be non-contractual and within Rome II. It is submitted that this is wrong as a general statement; and the Court of Appeal was not considering the point now in issue. The European Court’s judgment in Ergo Insurance v IF P&C Insurance [2016] ILPr 20 [44]–[46] indicates that Rome II applies only to certain non-contractual obligations, namely ‘obligations ensuing from damage, that is to say, any consequence arising out of tort/delict, unjust enrichment, ‘negotiorum gestio’ or ‘culpa in contrahendo’.

²⁸ See OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[21]; AMT Futures v Marzillier [2015] QB 699 (CA) [50]–[54].

²⁹ See A Dickinson, The Rome II Regulation (OUP 2008) para 4.109.

³⁰ See by analogy C-133/08, Intercontainer Interfrigo v Balkenende Oosthuizen [2010] QB 411[63]–[64]; C-305/13, Haeger Schmidt v MMA IARD [2015] QB 319 [49].

³¹ This shows that the choice of law analysis is more difficult for single forum injunctions than alternative forum injunctions. See Ch 3, para 3.28.

³² Under English conflicts of laws rules, matters of procedure are questions for the lex fori. The English law concept of ‘procedure’ includes all matters of ‘remedy’, and is broader than the European concept. See Private International Law (Miscellaneous Provisions) Act 1995, s 14(3); Huber v Steiner (1835) 2 Bing NC 202, 135 ER 80, 83 (‘so much of the law as affects the remedy only, all that relates to the “ad litis decisionem”, is taken from the “lex fori” of the country where that action is brought’); Don v Lippmann (1837) 5 Cl & Fin 1, 7 ER 303, 307; Baschet v London Illustrated Standard [1900] 1 Ch 73, 78; Boys v Chaplin [1971] AC 356 (HL) 378G–379A, 394C–F; Olex Focas v Skodexport [1998] 3 VR 380, 395; Konamaneni v Rolls Royce [2002] 1 WLR 1269 [45]–[50]; Harding v Wealands [2007] 2 AC 1 (HL) [24]–[31], [55], [66]–[67].

³³ Midland Bank v Laker Airways [1986] QB 689 (CA) 701H–702A: ‘Since the jurisdiction to grant such injunctions is an English jurisdiction, the question whether it is unconscionable that Laker Airways should be allowed to pursue the plaintiff banks in a United States antitrust suit must be decided by the criteria of English law …’.

³⁴ The question of whether from a purely domestic perspective it is possible to dispense with an underlying equitable right, is discussed in Ch 3, section B, ‘A Legal or Equitable Right?’. It is submitted that it is.

The question of applicable law for anti-suit injunctions also connects to the contentious issue of claims for damages in equity for vexatious litigation abroad (independent of any specific concrete equity). Such a damages claim would appear to require the sort of substantive equity, in respect of which the case for applying Rome II, and the law of the targeted country, is stronger: which may illustrate why it is not clear that such a general damages right is sound. See Ch 14, section B, ‘Non-Contractual Damages’.

³⁵ See Ch 3, section A, ‘The Power to Grant Injunctions’.

³⁶ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892A–F; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19], [23], [53]; see also Turner v Grovit [2002] 1 WLR 107 (HL) 116G–H; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [65]. Although Fourie v Le Roux [2007] 1 WLR 320 (HL) has removed the rigid restrictions on the court’s powers to grant injunctions under s 37(1), it has not abolished the principles, based on the case law, which guide the exercise of the court’s discretion: see [3], [6], [45], [48]. Thus, the question whether the foreign proceedings are vexatious and oppressive is not a mere aspect of discretion but a question of evaluative judgment with a right answer, and so is readily open to examination on appeal: Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [2].

³⁷ Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [24]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [41].

³⁸ Bushby v Munday (1821) 5 Madd 297, 56 ER 908, at 913; Carron Iron v Maclaren (1855) 5 HLC 416 (HL) 10 ER 961, 970; Bank of Tokyo Ltd v Karoon [1987] AC 45 (CA) 59, per Goff LJ (‘whenever justice demands’); South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ NV [1987] AC 24 (HL) 44H, per Lord Goff, in the minority (‘in the interests of justice’); Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] 1 AC 871 (PC) 892A–B, per Lord Goff; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 133C–D, 140B, per Lord Goff; Credit Suisse First Boston (Europe) v MLC Bermuda [1999] 1 Lloyds Rep 767, 780–81 (‘in the interests of justice’); Youell v Kara Mara Shipping [2000] 2 Lloyds Rep 102, 113 [43] (although the analysis is controversial on other points); Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19], [45], [53]; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]–[43]; Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [6]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [60], [101] (both phrases used); Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [26]; Petter v EMC [2016] ILPr 3 (CA) [33], [48] (both phrases used); Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [50] (a recent use of ‘the ends of justice’); Ardila Investments v ENRC [2015] EWHC 1667 [56]–[57].

³⁹ Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J), 687; quoted with approval in Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 104, 107. Similarly, the concept of oppression must be judged by English standards: Omega Group Holdings v Kozeny [2002] CLC 132. This approach is inextricable from the conclusion that English law is the applicable law (discussed in section B, ‘Applicable Law’; and see in particular para 4.08).

⁴⁰ Ch 2, para 2.03.

⁴¹ Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J), 686–87, contrary to the comments of Lord Diplock in British Airways Board v Laker Airways [1985] AC 58 (HL) 81, which are not consistent with the modern statements of the tests derived from Aérospatiale and have not been followed in modern case law. See further para 4.30 below.

⁴² The modern power is exercised in circumstances both broader and narrower than it was historically. The Court of Chancery would, at least in the early years of the nineteenth century, restrain foreign proceedings merely on the ground that England was a more convenient forum, but this is not the modern law, as it would ‘disregard the fundamental requirement that an injunction will only be granted where the ends of justice so require’: Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 895G–H (see Ch 2, paras 2.03, 2.10, 2.26–2.27). On the other hand, under the old law there was a reluctance to grant an injunction to restrain proceedings brought by a foreigner before his own courts, if he had not voluntarily participated in the English process: Carron Iron v Maclaren (1855) 5 HLC 416, 10 ER 961 (HL); Maclaren v Stainton (1855) 26 LJ (NS) 332, 333; Re Distin (1871) 24 LT 197; Re Chapman (1873) LR 15 Eq 75; Ellerman Lines v Read [1928] 2 KB 144 (CA) 152–53, 154–55 (see Ch 2, paras 2.11–2.12). But there is no such rigidity today, provided that the English court has a sufficient interest in the matter. However, the foreign domicile of the injunction defendant, and any lack of submission to the jurisdiction of the English courts, will be matters to be taken into account in the assessment of what comity requires: see Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [30]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC).

⁴³ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894F–G, 896F–H; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) 431. See eg Du Pont de Nemours v Agnew [1988] 2 Lloyds Rep 240 (CA) 245.

⁴⁴ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892A–C, 893E; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC). In the Canadian case of Amchem Products v British Colombia (Workers Compensation Board) [1993] 1 SCR 897 (Can SC) 910, 932–33, Sopinka J held that a formulation based on the broad concept of injustice was to be preferred, without reference to vexation and oppression, which he considered to be vague and undefined terms. This does not reflect English law: Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 490.

⁴⁵ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892A–894G, 902F–G. In Turner v Grovit [2002] 1 WLR 107 (HL) 117E–F, Lord Hobhouse thought that ‘the basic principle of justice’ could only be a background justificatory concept, but it is submitted that this is not the law.

⁴⁶ The Eras Eil Actions [1995] 1 Lloyds Rep 64, 86; Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 491–92; Bouygues Offshore v Caspian Shipping (No 3) [1997] 2 Lloyds Rep 493, 502–06; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [41].

⁴⁷ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896G–H. See eg The Eras Eil Actions [1995] 1 Lloyds Rep 64, 84; Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 491–92; Bouygues Offshore v Caspian Shipping (No 3) [1997] 2 Lloyds Rep 493, 502–06; Bloch v Bloch [2003] 1 FLR 1 [95]. See section K, ‘Legitimate and Illegitimate Advantages’ below.

⁴⁸ British Airways Board v Laker Airways [1985] AC 58 (HL) 81C; South Carolina Insurance Co v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40D; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]; AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) [20]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [22], [23], [25].

⁴⁹ See Ch 3, section B, ‘A Legal or Equitable Right?’.

⁵⁰ Discussed in Chs 7 and 8.

⁵¹ See generally Ch 2, paras 2.03–2.08, 2.29–2.31.

⁵² British Airways Board v Laker Airways [1985] AC 58 (HL) 81C–F, discussed at 2.29–2.31.

⁵³ See the comments of Hoffmann J in Barclays Bank v Homan [1993] BCLC 680, 686–87.

⁵⁴ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [18]–[25].

⁵⁵ Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret (The Yusuf Cepnioglu) [2016] 1 Lloyds Rep 641 (CA) [33]. See Ch 10, section C, ‘An Obligation Not to Sue Elsewhere?’.

⁵⁶ See the discussion of US law in G Bermann, ‘The Use of Anti-Suit Injunctions in International Litigation’ (1990) 28 Columbia J Transnl Law 589, 620–22.

⁵⁷ Similarly, if a party were to seek to use, in foreign proceedings, documents which he had obtained in disclosure in English proceedings, in breach of the implied undertaking to the English court, it is likely that the court would restrain him from doing so by injunction: see Bourns v Raychem (No 3) [1999] FSR 641 [11], [15]–[20], [55] (Laddie J), 679–82 (CA); Bourns v Raychem (No 4) [2000] FSR 841, 845–46 (referring to earlier unreported judgments). In the USA, see Omnium Lyonnais D’Etanchéité et Revêtement Asphalte v Dow Chemical, 441 F Sup 1385 (CD Cal 1977) (where a French judgment was obtained by the use of discovery documents in breach of a US court order; and the claimants in France were restrained from enforcing the French judgment).

⁵⁸ Willers v Joyce [2018] AC 779 (SC); following Crawford Adjusters (Cayman) v Sagicor General Insurance (Cayman) [2014] AC 366 (PC); and departing from Gregory v Portsmouth City Council [2000] 1 AC 419 (HL).

⁵⁹ Martin v Watson [1996] AC 74 (HL) 80; Willers v Joyce [2018] AC 779 (SC) [56], [85]–[86].

⁶⁰ Castrique v Behrens (1861) 3 El & El 709, 121 ER 608, 613; Parton v Hill (1864) 10 LT 414; Basebé v Matthews (1867) LR 2 CP 684; Bynoe v Governor and Company of the Bank of England [1902] 1 KB 467; Everett v Ribbands [1952] 2 QB 198 (CA).

⁶¹ Congentra v Sixteen Thirteen Marine (The Nicholas M) [2008] 2 Lloyds Rep 602 [38]–[44].

⁶² Castrique v Behrens (1861) 3 El & El 707, 121 ER 608, 613; Taylor v Ford (1873) 29 LT 392. See para 4.37 below.

⁶³ Grainger v Hill (1838) 4 Bing (NC) 212, 132 ER 769, 773–74; Parton v Hill (1864) 10 LT 414; Goldsmith v Sperrings [1977] 1 WLR 478 (CA) 489H, 498; Speed Seal Products Ltd v Paddington [1985] 1 WLR 1327 (CA); Metall und Rohstoff v Donaldson, Lufkin & Jenrette [1990] 1 QB 391 (CA) 469–70; Crawford Adjusters (Cayman) v Sagicor General Insurance (Cayman) [2014] AC 366 (PC) [62]–[66] [79], [149]–[158].

⁶⁴ Land Securities v Fladgate Fielder [2010] Ch 467 (CA); See also De Medina v Grove (1847) 10 QB 172, 116 ER 67; Powell v Hoyland (1851) 6 Exch 67, 155 ER 456, 459; Digital Equipment Ltd v Darkcrest [1984] Ch 512, 522–24.

⁶⁵ In Willers v Joyce [2018] AC 779 (SC), the two torts were seen as difficult to distinguish: see at [25], although the scope of the tort of abuse of civil process was not decided. In Crawford Adjusters (Cayman) v Sagicor General Insurance (Cayman) [2014] AC 366 (PC) [62], [75], Lord Wilson JSC saw the two torts as marching together; and they were conflated in Gregory v Portsmouth City Council [2000] 1 AC 419 (HL). See also Congentra v Sixteen Thirteen Marine (The Nicholas M) [2008] 2 Lloyds Rep 602 [21]–[23], holding before Willers v Joyce that the limited circumstances so far identified on the case law were capable of incremental expansion. However, it may be necessary for a further appeal to proceed up the judicial tree before all the precedents are rationalized.

⁶⁶ Castrique v Behrens (1861) 3 El & El 707, 121 ER 608, 613; Taylor v Ford (1873) 29 LT 392.

⁶⁷ This was argued in British Airways Board v Laker Airways [1985] AC 58 (HL) 65E–F. There was no express decision on the point, but the House of Lords ignored tort as a basis for the anti-suit injunction.

⁶⁸ In some domestic cases, the tort of abuse of civil process has been considered as an additional possible basis for the injunction: Jacey (Printers) v Norton & Wright Group [1977] FSR 475, 479; Essex Electric v IPC Computers (UK) [1991] FSR 690, 699–701. See further Ch 6, paras 6.09–6.10.

⁶⁹ OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[21]; AMT Futures v Marzillier [2015] QB 699 (CA) [50]–[54].

⁷⁰ Congentra v Sixteen Thirteen Marine (The Nicholas M) [2008] 2 Lloyds Rep 602 [18] (applicable law of attachment proceedings is the law of the country of attachment).

⁷¹ OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[24].

⁷² Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160 [41]; Kallang Shipping 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]. A tort claim was also advanced in Schiffahrtgesellschaft Detlev von Appen v Voest Alpine Intertrading (The Jay Bola) [1997] 1 Lloyds Rep 179, 183; and Morison J thought a tort claim for damages would be a preferable way to resolve the problem in Horn Linie v Panamericana Formas e Impresos (The Hornbay) [2006] 2 Lloyds Rep 44 [26]. However, cf OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[24].

⁷³ OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [19]–[24]. Choice of law problems were not addressed in The Jay Bola, The Hornbay or The Kallang (No 1) (see n 72). In The Kallang (No 2) and The Duden, English law was applied but the judge observed neither party had argued that Senegalese law should apply.

⁷⁴ Article 4(3) makes clear that ‘A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.’

⁷⁵ The third party’s conduct in procuring the contracting party’s proceedings could be viewed as vexatious and oppressive. In addition, it has been held 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); OT Africa Line v Magic Sportswear [2005] 1 Lloyds Rep 252 [37].

⁷⁶ So, in Kallang Shipping v Axa Assurances Senegal (The Kallang) [2007] 1 Lloyds Rep 160 [36]–[37], the injunction was assessed by reference to principles of vexation, even though the underlying claims for damages included tortious claims for inducement.

⁷⁷ As in Kallang Shipping 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].

⁷⁸ Samengo-Turner v J&H Marsh & McLennan (Services) [2008] ICR 18 (CA) [23], [35], [43]. This language of rights was not adopted in Petter v EMC [2016] ILPr 3 (CA), discussed in paras 4.44-4.45 below. An argument that Article 2 of the Brussels–Lugano regime gave a defendant a ‘statutory right’ to be sued in the state of his domicile was not decided in General Motors v Royal & Sun Alliance Insurance [2007] 2 CLC 507 [46].

⁷⁹ In The Eras Eil Actions [1995] 1 Lloyds Rep 64, 74–76, Potter J observed:

I incline to the view, as submitted for the foreign plaintiffs, that it is not helpful to categorize commencement of suit in a jurisdiction other than that laid down by the Convention as the invasion of a ‘right’ of the defendant in the traditional sense accorded to that term as a foundation for the grant of injunctive relief.

This is consistent with the analysis adopted by the ECJ. In C-281/02, Owusu v Jackson [2005] ECR I-1383 [40]–[42], the language of rights was not used. See T Raphael, ‘Do as You Would be Done By? System-Transcendent Justification and Anti-Suit Injunctions’ [2016] LMCLQ 256.

⁸⁰ The Eras Eil Actions [1995] 1 Lloyds Rep 64, 74–76. The decision was in part based on the conclusion, derived from Re Harrods (Buenos Aires) [1992] Ch 72 (CA), that the Brussels–Lugano regime did not affect the jurisdictional relationships of the contracting states outside the Brussels–Lugano zone, which is no longer good law since Case C-281/02, Owusu v Jackson [2005] ECR I-1383; but the remainder of the reasoning is sound. See also Evialis v SIAT [2003] 2 Lloyds Rep 377 [139(ii)]. In Ultisol Transport Contractors v Bouygues Offshore [1996] 2 Lloyds Rep 140, 146–48, Clarke J also concluded that Article 17 of the Brussels Convention (now Art 25 of the Recast) did not support an anti-suit injunction to restrain proceedings in South Africa, although the reasoning there was largely based on the now discredited approach in Re Harrods.

⁸¹ Samengo-Turner v J&H Marsh & McLennan (Services) [2008] ICR 18 (CA) [38]–[44].

⁸² The decision is criticized by academic writers. Professor Adrian Briggs, in ‘Who is Bound by the Brussels Regulation?’ [2007] LMCLQ 433, describes it as a ‘calamity’ and argues that it was decided per incuriam; see also A Briggs, Agreements on Jurisdiction and Choice of Law (OUP 2008), paras 3.46–3.47. Forceful criticism is found in A. Dickinson, ‘Resurgence of the Anti-Suit Injunction: The Brussels I Regulation as a Source of Civil Obligations?’ (2008) 57 ICLQ 465. L Merrett, Employment Contracts in Private International Law (OUP 2011), paras 9.36–9.39, is uncommitted.

⁸³ The Eras Eil Actions [1995] 1 Lloyds Rep 64 appears not to have been cited.

⁸⁴ Evialis v SIAT [2003] 2 Lloyds Rep 377 [139(ii)] (also not cited to the Court of Appeal in Samengo-Turner). In Turner v Grovit [2000] QB 345 (CA) 364E, the Court of Appeal optimistically concluded that the grant of an anti-suit injunction would ‘underpin and support the proper application of the Brussels Convention’; but the ECJ most definitely did not agree: Case C-159/02, Turner v Grovit [2004] ECR I-3565.

⁸⁵ For the Castanho heresy, see Ch 2, section D, ‘Forum non Conveniens and the Castanho Heresy’; para 4.72 and n 165.

⁸⁶ See section J, ‘Forum non Conveniens’ below.

⁸⁷ Petter v EMC [2015] EWHC 1498.

⁸⁸ Petter v EMC [2016] ILPr 3 (CA) (27 July 2015).

⁸⁹ Moore-Bick LJ did refer to the idea of such a right, but applied it as a matter of precedent, not principle. It appears not to have been argued that the Brussels–Lugano regime did not create relevant rights: see [29], [31].

⁹⁰ For a fuller exploration, see T Raphael, ‘Do as You Would be Done By? System-Transcendent Justification and Anti-Suit Injunctions’ [2016] LMCLQ 256.

⁹¹ In Barclays Bank v Homan [1993] BCLC 680, 687–88, Hoffmann J said:

a theme common to certain recent decisions is that the foreign court is, judged by its own jurisprudence, likely to assert a jurisdiction so wide either as to persons or subject-matter that to English notions it appears contrary to accepted principles of international law. In such cases the English court has sometimes felt it necessary to intervene by injunction to protect a party from the injustice of having to litigate in a jurisdiction with which he had little, if any, connection, or in relation to subject-matter which had insufficient contact with that jurisdiction, or both. Since the foreign court is per hypothesi likely to accept jurisdiction, this is a decision which has to be made here if it is to be made at all. These are cases in which the judicial or legislative policies of England and the foreign court are so at variance that comity is overridden by the need to protect British national interests or prevent what it regards as a violation of the principles of customary international law [Emphasis added to ‘or’—these ideas are alternative].

This was adopted in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [2015] 1 AC 616 [42]. See also Airbus Industrie v Patel [1999] 1 AC 119 (HL) 137–138; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [56]. The circumstances in which it may be legitimate to rely on public policy as a freestanding ground to support anti-suit injunctions are discussed in more detail in section I, ‘Protection of English Public Policy’ below.

In the quotation, Hoffmann J used, as one of his parameters, the concept of whether the foreign court’s assumption of jurisdiction was in violation of ‘customary international law’. But on closer analysis this may be an inaccurate metaphor. Customary public international law on the exercise of prescriptive civil jurisdiction does not, at present, have any very clearly defined content, or at the least its content is contested. A conventional view is that it states a broad discretion within parameters of ‘reasonableness’, but this is not very helpful. (See Barcelona Traction (Belgium v Spain) [1970] ICJ Rep 3 [70–72], Individual Opinion of Sir Gerald Fitzmaurice; AW Lowenfeld, ‘International Litigation and the Quest for Reasonableness’ Part I (1994) 245 Recueil des Cours 83, 94, 120–22; J Crawford, Brownlie’s Principles of Public International Law (8th edn, OUP 2012) (hereafter ‘Brownlie’) 471–76.) Yet a conflicts rule can be exorbitant, and capable of criticism from an international perspective, even if it is not something that could be a breach of a clearly defined rule of public international law. Further, requiring national courts to identify rules of customary international law in this context would be demanding. So as a controlling concept the notion of customary international law would be difficult to apply. It would be better to frame this parameter, when asking whether it is justified to grant an anti-suit injunction by reference to public policy, in terms of whether the foreign court’s jurisdiction would be exorbitant, from a non-parochial private international law perspective, which is what the courts probably had in mind. The yardstick of ‘exorbitant’ is commonly used in such internationally minded assessments (eg Brownlie, 472). In Midland Bank v Laker [1986] 1 QB 689 (CA) and Airbus v Patel [1999] 1 AC 119 (HL) the Court of Appeal and House of Lords asked whether the foreign court’s exercise of jurisdiction was in fact exorbitant or consistent with comity, without reference to specific rules of customary international law.

⁹² Akai v People’s Insurance [1998] 1 Lloyds Rep 90 (criticized by the Australian courts in The Comandate [2008] 1 Lloyds Rep 119 [252]); OT Africa Line v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA).

⁹³ Petter v EMC [2015] EWCA Civ 828 (second judgment, of 31 July 2015).

⁹⁴ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896F–G; Airbus Industrie v Patel [1999] AC 119 (HL) 133C; Donohue v Armco [2002] 1 Lloyds Rep 25 (HL) 431 [19]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50].

⁹⁵ For the concept of unconscionable conduct, see section G, ‘Unconscionable Conduct’ below.

⁹⁶ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [18]. In Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2004] 1 Lloyds Rep 471 (CA) 475, Evans-Lombe J accepted the unchallenged proposition that, outside breach of contract cases, the court could only intervene where the pursuit of foreign proceedings would be vexatious and oppressive, but this is not the law: Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50].

⁹⁷ See sections H, ‘Interference with the Jurisdiction of the English Court’ and and I, ‘Protection of English Public Policy’ below.

⁹⁸ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 893–94, 899F; see also in Scotland FMC v Russell (1999) SLT 99 (Ct of Sess) 102.

⁹⁹ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 893E.

¹⁰⁰ Barclays Bank v Homan [1993] BCLC 680, 685–86; Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 [41].

¹⁰¹ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 893F–G; Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [83].

¹⁰² See Ch 5, paras 5.06–5.07.

¹⁰³ See Carron Iron v Maclaren (1855) 5 HLC 416 (HL) 10 ER 961, 970–71, where it was accepted that foreign proceedings that were ‘unnecessary and therefore vexatious’ could be restrained; Cohen v Rothfield [1919] 1 KB 410 (CA) 414–15. See also in the modern case law, Midland Bank v Laker Airways [1986] QB 689 (CA) 700E–F; Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 609.

¹⁰⁴ This remains an element of the modern case law: ‘vexatious harassment’ has been viewed as a ground for the injunction: Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [69], where an injunction was granted to restrain ‘a strategy of harassment and vexation, designed to wear down Glencore by making it as difficult and expensive as possible for it to bear the burden of litigation on several fronts’; Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [18]; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [30].

¹⁰⁵ The modern case law on when the alleged weakness of the foreign claims can be relevant to vexation is discussed in more detail at Ch 5, paras 5.26–5.27. The exact approach is still developing. For reasons of comity, the courts are reticent to grant injunctions on this ground alone, as the foreign court may be the appropriate court to assess weakness under its own law. But vexation has been found on this basis where it is ‘plain’ that the foreign proceedings are ‘bound to fail’: British Airways Board v Laker Airways [1985] AC 58 (HL) 65; Midland Bank v Laker Airways [1986] QB 689 (CA) 700; Shell International Petroleum Ltd v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 609, although such cases are ‘likely to be rare’: Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [31].

¹⁰⁶ McHenry v Lewis (1882) 22 Ch D 397 (CA) 402–03; Peruvian Guano v Bockwoldt (1883) 23 Ch D 225, 230 (both stay cases); Hyman v Helm (1883) 24 Ch D 531 (CA) 538, 544; Cohen v Rothfield [1919] 1 KB 410 (CA) 414 (per Scrutton LJ; it is to be noted, however, that Eve J appears to have taken a broader approach). See Ch 2, paras 2.17–2.21.

¹⁰⁷ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 893–94. In Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [36–37] the court envisaged that invocation of a legal advantage available under the foreign legal system’s rules would be vexatious if it was ‘hopelessly and cynically invoked’.

¹⁰⁸ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894G, 902F.

¹⁰⁹ See Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992): ‘the court must be satisfied that the foreign proceedings are vexatious or oppressive in a sense which is likely to result in injustice’; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50(3)].

¹¹⁰ Star Reefers Pool Inc v JFC Group Ltd [2012] 1 Lloyds Rep 376 (CA) [32], [37]–[38].

¹¹¹ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896G. Other examples of duplicative foreign proceedings that can amount to vexation and oppression are explored in Ch 5, section B, ‘Alternative Forum Cases’.

¹¹² Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J), 686, 688, and per Leggatt LJ at 702.

¹¹³ Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [36]–[39].

¹¹⁴ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896F–G.

¹¹⁵ Turner v Grovit [2002] 1 WLR 107 (HL) 117C–F.

¹¹⁶ The phrase used by Lord Cranworth LC in Carron Iron v Maclaren (1855) 5 HLC 416, 10 ER 961 (HL) 971, although elsewhere he referred to ‘the ends of justice’: at 970.

¹¹⁷ The history of the competing tests is discussed in Ch 2, sections E–F. It is submitted that Lord Goff’s tests have been established as the law, without reference to unconscionable conduct, through the adoption of Lord Goff’s speech in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 891–97 by the House of Lords in Airbus Industrie GIE v Patel [1998] 1 AC 119 (HL) 133C–F (obiter) and Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19], [45], [53] (ratio). The Privy Council also adopted Aérospatiale in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [17]–[25].

¹¹⁸ Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[53].

¹¹⁹ British Airways Board v Laker Airways [1985] AC 58, 81D–F; South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40D.

¹²⁰ Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19], referring to the ‘development of principle’; and see Ch 2, sections E–F.

¹²¹ In Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], of course, the Aérospatiale tests were used, and the same occurred in Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [82]–[85]. The recent decision in Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [37]–[40] followed Aérospatiale. In Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [39], [41], [44], [48], [95], Lawrence Collins LJ referred to both ways of stating the law without deciding between them. Further, the ‘synthetic’ cases like Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) (discussed at paras 4.60–4.65 below) represent a shift to a middle position seeking to combine Turner v Grovit and Aérospatiale.

¹²² Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [18]–[23].

¹²³ For recent first instance decisions using the Aérospatiale tests or the Deutsche v Highland summary, see Morris v Davies [2011] EWHC 1272 [16]; Re Tadros (Deceased) [2014] EWHC 2860 [73]; Dawnus Sierra Leone v Timis Mining Corporation [2016] EWHC 236 [61]; Team Y&R Holdings Hong Kong Limited v Ghossoub [2017] EWHC 2401 [41]; The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [107]–[111].

¹²⁴ As illustrated by Lord Diplock’s speech in British Airways Board v Laker Airways [1985] AC 58 (HL) 81D–F; see the comments of Hoffmann J in Barclays Bank v Homan [1993] BCC 680, 686–87.

¹²⁵ See eg Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [65]–[70]; Tonicstar v American Home Insurance [2005] Lloyds Rep IR 32, 36–38; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [95]; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [2], [24], [31], [32].

¹²⁶ Turner v Grovit [2002] 1 WLR 107 (HL), 117E [24]. It can be suggested that, at least in part, the heavy emphasis put on wrongful conduct by Lord Hobhouse should be understood as a rhetorical effort to persuade the ECJ that the injunction operated in personam only, and did not therefore interfere with the jurisdiction of the courts of other member states of the Brussels–Lugano zone (his attempt was unsuccessful: see Case C-159/02, Turner v Grovit [2004] ECR I-3565, discussed at Ch 12, section B, ‘The Collision’). Lord Hobhouse’s focus on the wrongful conduct of the injunction defendant also led to his speech misstating the law in a number of other respects: see nn 45, 164, 166, 183, 192, 200.

¹²⁷ The corresponding analysis in the first edition of this work, supporting Lord Goff’s approach, was agreed with by Choo Han Teck J in the High Court of Singapore in AQN v AQO [2015] 2 SLR 523 [24]–[26]. The discrepancy between Lord Hobhouse’s analysis and the previous case law was also observed by A Briggs, ‘Decisions of British Courts during 2001: Private International Law’ (2001) BYBIL 437, 438.

¹²⁸ Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [41]–[42] (Rix LJ); Sabah Shipyard (Pakistan) v Islamic Republic of Pakistan [2003] 2 Lloyds Rep 571 (CA) [38]–[39]; Royal Bank of Canada v Cooperative Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [29], [2004] 1 Lloyds Rep 471 (CA) [8] (per Evans Lombe J, although Mance LJ’s approach at [36]–[39] in substance followed Lord Goff’s approach; Thorpe LJ agreed with both [51]); and Seismic Shipping v Total E&P UK [2005] 2 Lloyds Rep 359 (CA) [44]–[45], where Evans-Lombe J’s summary in Raiffeisen was applied, on the (incorrect) assumption that it reflected the point of view of the whole Court of Appeal in Raiffeisen. In OT Africa Line v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA) [63]–[64], the ‘synthetic’ approach was again put forward by Rix LJ, but Longmore LJ preferred Lord Goff’s approach: at [31]–[32].

However, since around 2005 and in particular since Deutsche v Highland in 2010 the bulk of the case law shows a move back towards the Aérospatiale concepts and away from this ‘synthetic’ approach and Turner v Grovit. The cases on this are set out in nn 117, 121, and 123 above.

One partial exception to that movement is Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [26]–[27], where both the Deutsche and the Glencore summaries were used (by Rix LJ). In addition, in Ahmed v Mustafa [2015] 1 FLR 139 (CA) [12]–[15] a version of the ‘unconscionable conduct’ test was applied, but without argument to the contrary.

¹²⁹ Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]. Note that the further aspects of Rix LJ’s summary at [42] are not the law, as discussed at paras 4.64, 4.80 n 192, and 4.81 n 200.

¹³⁰ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134D–E and Masri v Consolidated Contractors (No 3) [2009] QB 503 [44]. See Ch 5, para 5.29 n 86.

¹³¹ British Airways Board v Laker Airways [1985] AC 58 (HL) 81E–81H, 84G; Midland Bank v Laker Airways [1986] QB 689 (CA)—which happened to be decided between Castanho and Aérospatiale—and it is the linguistic consequences of this happenstance that were picked up en passant in Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134D–E.

¹³² Ch 3, section B, ‘A Legal or Equitable Right?’.

¹³³ Masri v Consolidated Contractors (No 3) [2009] QB 503 [44], although cf [55]–[56] suggesting that [44] may not be a concluded opinion.

¹³⁴ Ch 3, paras 3.17–3.26.

¹³⁵ Pennell v Roy (1853) 3 De Gm & G 126, 43 ER 50, 53–56; Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 96, 100; Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610.

¹³⁶ See nn 121, 123.

¹³⁷ Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [26]–[27]; Golden Endurance Shipping v RMA Watanya (The Golden Endurance) [2015] 1 Lloyds Rep 266 [39], [40], [45]; Re Tadros [2014] EWHC 2860 [44]–[46] (although the court went on to apply vexation or oppression: [73]–[78]).

¹³⁸ To do so also reflects the alternative tests allowed for in Carron Iron Co v Maclaren (1855) 5 HLC 416, 10 ER 961 (HL) 970–71.

¹³⁹ There are numerous examples of the courts taking a similar pragmatic approach. See eg Albon v Naza Motor Trading (No 4) [2008] 1 Lloyds Rep 1 (CA) [7], where Longmore LJ stated the test as being whether the foreign litigation was ‘oppressive and vexatious or (as it is sometimes said) unconscionable’; Royal Bank of Scotland v Hicks [2011] EWHC 287 [62]; Joint Stock Asset Management Co Ingosstrakh-Investments v BNP Paribas [2012] 1 Lloyds Rep 649 (CA) [58]; Axa Corporate Solutions Assurance v Weir Services Australia [2016] EWHC 904 [45].

¹⁴⁰ On one reading of Turner v Grovit [2002] 1 WLR 107 (HL), the notion of unconscionability could be seen as a second-level concept, derived from ‘the basic principle of justice’: 117E–F; but is submitted that the best reading of the judgment is that Lord Hobhouse saw unconscionability as the primary concept; his reference to ‘the basic principle of justice’ was calculated to relegate notions of justice to a background justification.

¹⁴¹ The word ‘illegitimate’ is not used in any of the main statements of these concepts in the case law but it is submitted that it deserves to be infiltrated into them; it can derive some support from the reference to the ‘due process’ of the court in South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 41D.

¹⁴² Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 60G (‘interfering with the proper course of the administration of justice here’); South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] 1 AC 24 (HL) 41D; Omega Group Holdings v Kozeny [2002] CLC 132 [23]; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]; Masri v Consolidated Contractors (No 3) [2009] QB 503 [26], [80]–[88], [100].

¹⁴³ Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 60G (‘necessary and proper for the protection of the exercise of the jurisdiction of the English court’); South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] 1 AC 24 (HL) 45A–B; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892H–893A (‘to protect the jurisdiction of the English court’); Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [26], [83]–[88], [100]; Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [159]–[160]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [23]–[24]. See also Morris v Davies [2011] EWHC 1272 [37]–[38]; Ardila Investments v ENRC [2015] EWHC 1667 [57]–[58]. A striking example is Royal Bank of Scotland v Hicks [2011] EWHC 287.

In Burton J’s judgment in Golden Endurance Shipping v RMA Watanya (The Golden Endurance) [2015] 1 Lloyds Rep 266 [42]–[45], he appears on one reading to be denying the separate existence of such a head of anti-suit injunctions to protect the jurisdiction of the court. If so, that is not the law and was not necessary for his decision. His judgment is better read as being concerned with whether injunctions can be justified to prevent evasion of English public policy: see para 4.71 below.

¹⁴⁴ Before Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), it was suggested by Lord Goff that the concept of protection of the jurisdiction of the English court was ‘the golden thread running through the rare cases where an injunction has been granted’: see Bank of Tokyo v Karoon [1987] AC 45 (CA) 60F–G and South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] 1 AC 24 (HL) 45A–B. But in Aérospatiale, the Privy Council, whose judgment was delivered by Lord Goff, concluded that this was ‘too narrow a view’. The injunction was to be granted where the ‘ends of justice’ required it, and injunctions to restrain vexatious or oppressive behaviour were of equal if not greater importance to injunctions to prevent interference with the process of the English court: at 892A–893E.

¹⁴⁵ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [25].

¹⁴⁶ See Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [23]–[25] and also Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992).

¹⁴⁷ The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [110]–[111]. So in the cases of Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [83]–[96] and Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC), where injunctions were required to protect the jurisdiction of the courts, no showing of natural forum was required. See also Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610 (suggesting that in pure vexation cases the relevant concept was whether the English forum was the natural forum to decide the question of forum).

¹⁴⁸ See eg Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [17], [25]–[26]; but at [28] Rix LJ also quoted Deutsche v Highland, where—it is submitted more correctly—natural forum was stated as generally a criterion for injunctions based on vexation and oppression only. This point is returned to in more detail in sections K, ‘Legitimate and Illegitimate Advantages’ and L, ‘Comity’ below.

¹⁴⁹ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894F–G, 896F–G; and see also in Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], at point 3.

¹⁵⁰ Turner v Grovit [2000] QB 345 (CA) 357F–358F, criticized in A Briggs, ‘Private International Law’ (1999) 69 BYBIL 332–35; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (Moore Bick J) [35]–[38], [40], affd in different terms [2002] CLC 1090 (CA); Emmott v Michael Wilson [2017] 1 Lloyds Rep 21 [57]–[59], departed from on this point in Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [54].

¹⁵¹ Michael Wilson v Emmott [2018] 1 Rep 299 (CA) [54]. See also Glencore International v Metro Trading International Inc (No 3) [2002] CLC 1090 (CA) [42].

¹⁵² Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [83], [85]; Emmott v Michael Wilson [2017] 1 Lloyds Rep 21 [57]–[59], [62], as in part upheld by Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [55]–[58]; although see the cautious approach taken in Zeeland Navigation v Banque Worms (Waller J, 13 December 1995).

¹⁵³ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [83]–[95], [100]; Elektrim SA v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [159]; Zeeland Navigation Company v Banque Worms (Waller J, 13 December 1995); and for a recent example see Ardila Investments v ENRC [2015] EWHC 1667 [57]. This can also be viewed as protecting one of the court’s judgments. For an example of an analogous form of reasoning in a different context, see Cukurova Finance International v Alfa Telecom Turkey [2015] 2 WLR 875 (PC). However, it is important to bear in mind that it is presumptively legitimate to resist enforcement of English judgments abroad, under the foreign legal system’s own rules as to enforcement of judgments, in the normal way: see Masri v Consolidated Contractors (No 3) at [93].

¹⁵⁴ Armstrong v Armstrong [1892] P 98; South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL); Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); Bankers Trust International v PT Dharmala Sakti Sejahtera [1996] CLC 252; Omega Group Holdings v Kozeny [2002] CLC 132; Royal Bank of Scotland v Hicks [2011] EWHC 287 [94]–[96]. See Ch 5, section G, ‘Ancillary and Collateral Proceedings’. Similarly, foreign proceedings which seek to hold officers of the English court liable for their actions in the context of English court proceedings are likely to be restrained: see, in the context of the common injunction, Aston v Heron (1834) 2 My & K 390, 39 ER 993.

¹⁵⁵ See generally Ch 5, section H, ‘Anti-Anti-Suit Injunctions’. However, such cases are often in fact analysed in terms of vexation or oppression. For example, the issues in both General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719, and Tonicstar v American Home Assurance Co [2005] Lloyds Rep IR 32, could have been analysed in terms of interference with the process of the English court, but were instead framed in terms of vexation or oppression. The sub-text of both decisions, however, is that it was the interference with the English court’s process that was viewed as the strongest justification for relief: see General Star at [16]; and Tonicstar at [14].

¹⁵⁶ A recent example is Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [23]–[24]. See Ch 5, section E, ‘Insolvency and Justice between Creditors’.

¹⁵⁷ Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [55]–[58], in part upholding [2017] 1 Lloyds Rep 21 [57]–[59], [62].

¹⁵⁸ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [41]–[42] (part of the ratio; but the case could have been decided on other grounds without reference to public policy). This followed Barclays Bank v Homan [1993] BCLC 680, 689G, and 686B (per Hoffmann J; and this part of his judgment was not endorsed by the Court of Appeal); in which the point was obiter and the injunction was refused. See also Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992) (concepts of policy envisaged as relevant, but injunction rejected); Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [56] (obiter en passant reference to what Hoffmann J had decided in Homan); Petter v EMC [2016] ILPr 3 [51], [52], [55], [61] (obiter, and Sales LJ only). Other decisions like Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138-140; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [86] touch with fairly evident approval on the possibility of such a ground for an injunction without directly endorsing it. Similarly, while Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 57–63 envisages the possibility of an injunction on this basis the actual decision was to reject the injunction applying other grounds (using concepts of forum non conveniens as the law then stood). So, the actual authority for the proposition is confined to the decision of the Privy Council in Krys; all the other English decisions are obiter.

With respect to Petter v EMC, the decision itself is controversial for the reasons discussed at paras 4.41–4.46 above.

¹⁵⁹ See British Airways Board v Laker Airways [1984] QB 142, where the policy of the Protection of Trading Interests Act 1980 did not justify an injunction to restrain US anti-trust litigation: 163G–164B, 165H, 166E. Parker J’s decision was overturned by the Court of Appeal [1984] QB 142 (CA), but restored by the House of Lords [1985] AC 58 (HL), where Lord Diplock apparently agreed with Parker J’s conclusions on this issue: at 85E; and see Lord Scarman at 96B. Similarly, in Golden Endurance Shipping v RMA Watanya (The Golden Endurance) [2015] 1 Lloyds Rep 266 [45], Burton J declined to grant an injunction to enforce the public policy of the Hague Rules or Hague-Visby Rules as incorporated into English law, regarding this as inconsistent with comity.

¹⁶⁰ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 139G-H; Petter v EMC [2016] ILPr 3 (CA) [51]; also Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 63C, 63F–H; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [86].

¹⁶¹ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [41], adopting Hoffmann J in Barclays Bank v Homan [1993] BCLC 680, 686B, 689G.

In addition, with regard to the idea that ‘a violation of customary international law’ might be required as an alternative to a need to protect ‘British national interests’, it would seem to be unhelpful and unnecessary to read this literally. For the reasons discussed in more detail at n 91 above, the more germane question is whether the foreign court is acting in an exorbitant fashion, broadly assessed, rather than whether there is a technical breach of customary international law.

¹⁶² See Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42]; Barclays Bank v Homan [1993] BCLC 680, 686–91; Airbus Industrie v Patel [1999] 1 AC 119 (HL) at 138–40; another example may be in substance be Midland Bank v Laker Airways [1986] QB 689 (CA) (although not reasoned directly in terms of public policy). The counterexample to this is Petter v EMC [2016] ILPr 3 (CA).

¹⁶³ In Barclays Bank v Homan [1993] BCLC 680, 690F–G Hoffmann J commented that ‘the foreign court is entitled, without thereby necessarily occasioning a breach of international law or manifest injustice, to give effect to the policies of its own legislation’. See also Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871, 895; Deutsche v Highland [2010] 1 WLR 1023 [50]; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 [34], [36], [39], suggesting that the contrary would be ‘egoistic paternalism’; Jewel Owner v Sagaan Developments Trading (The MD Gemini) [2012] 2 Lloyds Rep 672 [21]; Golden Endurance Shipping v RMA Watanya (The Golden Endurance) [2015] 1 Lloyds Rep 266 [45].

¹⁶⁴ Until 1973, the courts required proceedings to be ‘vexatious and oppressive’, or an abuse of the process of the English court, before they would stay an English action: St Pierre v South American Stores (Garth & Chaves) [1936] 1 KB 382 (CA) 398; or grant an injunction to restrain the pursuit of a foreign action: Hyman v Helm (1883) 24 Ch D 531 (CA). However, in a series of cases beginning with The Atlantic Star [1974] AC 436 (HL) and MacShannon v Rockware Glass Ltd [1978] AC 795 (HL), the House of Lords first diluted and then abandoned the requirement of vexation in stay cases, and replaced it with the concept of forum non conveniens, under which proceedings in England would be stayed if the defendant could show that the foreign jurisdiction was clearly the more appropriate forum for the litigation: Spiliada Maritime v Cansulex [1987] AC 460 (HL) 474–78.

The lowering of the threshold for the grant of a stay reflected greater deference to foreign legal systems, and meant that ‘judicial chauvinism has been replaced by judicial comity’. But conversely, a parallel dilution of the conditions required for an anti-suit injunction would decrease deference and increase interference. To conclude that the adoption of forum non conveniens in relation to stays should produce a corresponding relaxation of the tests for an injunction was a non sequitur: The Abidin Daver [1984] AC 398 (HL) 411G; see also Bank of Tokyo v Karoon [1987] AC 45 (CA) (Note) 62E, 63A–F; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896D–E. Nevertheless, in Castanho v Brown & Root, Lord Scarman held that the principles applying to injunctions and stays should be the same, and that an anti-suit injunction could be granted on the ground that England was the most appropriate forum for the litigation, so long as the injunction would not deprive the injunction defendant of a legitimate juridical advantage: Castanho v Brown & Root [1981] AC 557 (HL) 574–77, per Lord Scarman; applied in Smith Kline & French Laboratories v Bloch [1983] 1 WLR 730 (CA) 737H–738G, 739H, 743B–G; 746F–747G; and in British Airways Board v Laker Airways [1984] QB 142 (CA) 187, where, however, on appeal the House of Lords distinguished Castanho as not applying to ‘single forum’ situations [1985] AC 58 (HL) 80, 95. The heresy of Castanho was restated obiter by the majority in South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 40F–G, but was criticized by Goff LJ (later Lord Goff), in Bank of Tokyo v Karoon [1987] AC 45 (CA) (Note) 61–63 (where he drew heavily on the American decision in Laker Airways v Sabena, Belgian World Airlines 731 F 2nd 909 (DC Cir 1984) [13]–[14], [17], [19]). As Lord Goff, he repeated his criticisms in his minority speech in South Carolina, 44F–45C. His view triumphed in Aérospatiale, 895–97, where the Privy Council, whose judgment Lord Goff delivered, held that to permit an injunction to be granted solely on the basis that the foreign court was an inconvenient forum would be inconsistent with comity, and that it would be wrong to conclude that the tests for stays and injunctions were the same (as to this see later Amchem Products v British Colombia (Workers’ Compensation Board) [1993] 1 SCR 897 (Can SC) 913 and Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) 433 [24]; the opinions to the contrary of Lord Hobhouse in Turner v Grovit [2002] 1 WLR 107 (HL) 118 [25], do not represent the law).

As a matter of strict precedent, the judgment in Aérospatiale was only a decision of Brunei law, but a laudable flexibility was displayed in the application of the doctrine of precedent, and the Castanho heresy consigned to oblivion. The subsequent case law generally treated the Castanho doctrine as having been ‘developed’ into non-existence by Aérospatiale: see Du Pont de Nemours v Agnew [1988] 2 Lloyds Rep 240 (CA) 243–44, 249; Barclays Bank v Homan [1993] BCLC 680 (CA) 697–99, 702, or simply applied Aérospatiale: see eg Advanced Portfolio Technologies v Ainsworth [1996] FSR 217; Bouygues Offshore v Caspian Shipping [1997] 2 Lloyds Rep 485, 489–92; although questions of precedent did occasionally cause hesitation: see Pathe Screen Entertainment v Handmade Films (Distributors) (11 July 1989), where Hobhouse J took the view that he was still bound by Castanho and Laker but attempted to reconcile Aérospatiale with them; and Commercial Union Assurance v Simat Helliesen & Eichner [2001] Lloyds Rep IR 172, 175. In recent times, the House of Lords has put the matter beyond doubt, albeit without ever expressly departing from Castanho under the 1966 Practice Statement: Airbus Industrie v Patel [1998] 1 AC 119 (HL) 133C–F (adopting Aérospatiale); Turner v Grovit [2002] 1 WLR 107 (HL) [24]–[25] (adopting the principle of unconscionability, and reinterpreting Castanho); Donohue v Armco [19] (adopting Aérospatiale, and observing the ‘development of principle’; see also [45], [53]). See also Masri v Consolidated Contractors) (No 3) [2009] QB 503 (CA) [47]–[48].

The modern law on the point is conveniently stated in Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65].

¹⁶⁵ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894F–G; Donohue v Armco Inc [2002] 1 Lloyds Rep 425 (HL) [19]; Deutsche Bank AG v Highland Crusader Partners LP [2010] 1 WLR 1023 (CA) [50], [53]–[62].

¹⁶⁶ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 895–6; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19]; see also Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]. In this respect, the statement of Lord Hobhouse in Turner v Grovit [2002] 1 WLR 107 (HL) 118F–G that forum non conveniens ‘is a weak complaint and is easily overridden by other factors or considerations’ is overgenerous. It is clear from Aérospatiale that forum non conveniens cannot suffice in itself. See now Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65], and in particular the interpretation of Turner at [62].

¹⁶⁷ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896F–H; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19].

¹⁶⁸ Smith Kline & French Laboratories Ltd v Bloch [1983] 1 WLR 730, 738H, 743G, 748A (although the underlying jurisprudential approach in that case has now been discredited); Spiliada Maritime v Cansulex [1987] 1 AC 460 (HL) 473G, 476A, 482B–484D. For a recent example, see Re Tadros [2014] EWHC 2860 [74]–[77].

¹⁶⁹ Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [36].

¹⁷⁰ Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 491–92; Bouygues Offshore v Caspian Shipping (No 3) [1997] 2 Lloyds Rep 493, 502–06.

¹⁷¹ Bloch v Bloch [2003] 1 FLR 1 [95].

¹⁷² Deutsche Bank v Highland Crusader Offshore Partners [2010] 1 WLR 1023 (CA) [50(4)].

¹⁷³ Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [36]–[38].

¹⁷⁴ Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 110–11, which sought to summarize the effect of Castanho v Brown & Root (UK) [1981] AC 557 (HL) 577C–G; Smith Kline & French Laboratories v Bloch [1983] 1 WLR 730, 738H; and Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894D–G, 899G–H. See also Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 99; Bank of Tokyo v Karoon [1987] AC 45, 51; Morris v Davies [2011] EWHC 1272 [35], [38]; but cf The Eras Eil Actions [1995] 1 Lloyds Rep 64, 85. It has been held that the unavailability of security for costs in the foreign forum is not a legitimate advantage: Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 95. The position is the same in Scotland: Shell UK Exploration and Production v Innes (1995) SLT 807 (Ct of Sess), 823–24. For recent applications of the concepts, see Star Reefers Pool v JFC Group Ltd [2012] 1 Lloyds Rep 376 (CA) [36]–[38]; Re Tadros [2014] EWHC 2860 [74]–[77].

¹⁷⁵ Smith Kline & French Laboratories v Bloch [1983] 1 WLR 730 (CA) 738H, 742C, 747D; see also Metall und Rohstoff v ACLI Metals (London) [1984] 1 Lloyds Rep 598 (CA) 607 (where jury trial was seen as a serious disadvantage). There is, however, room for doubt about whether this approach is consistent with comity.

¹⁷⁶ Moor v Anglo-Italian Bank (1879) 10 Ch D 681, 690–91; Re Belfast Shipowners [1894] 1 IR 321, 333; Settlement Corp v Hochschild [1966] 1 Ch 10, 18–19; Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v The Eleftheria (Owners) (The Eleftheria) [1970] P 94, 105 (a contractual stay case); Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [75]; Re Tadros [2014] EWHC 2860 [75].

¹⁷⁷ Ascot Commodities v Northern Pacific Shipping (The Irini A) [1999] 1 Lloyds Rep 196, 200.

¹⁷⁸ Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 99–100; see also, in the contractual context, Verity Shipping v NV Norexa [2008] 1 Lloyds Rep 652.

¹⁷⁹ Bitmac v Creosote Producers Association (CA, 1 January 1986); this is the converse situation to Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC).

¹⁸⁰ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896H–897A; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19].

¹⁸¹ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 133H, 140A–B; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65]. See also Jopson v James (1908) 77 LJ (Ch) 824, 828–30.

¹⁸² Airbus Industrie v Patel [1999] 1 AC 119 (HL) 133H, 134E.

¹⁸³ The indirect interference with the foreign court’s processes created by the injunction requires reconciliation with the principle of mutual respect, whereas in contrast a stay in favour of the foreign court is inherently respectful: Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 895E–G; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) 433 [24]; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 141G–H; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65]. Lord Hobhouse in Turner v Grovit [2002] 1 WLR 107 (HL) at [25] made some obiter comments that could be read in the contrary sense, but these are not the law; and in Deutsche v Highland, the Court of Appeal interpreted them into nothing, to produce an orthodox result, eg at [62].

¹⁸⁴ Paragraphs 4.89–4.92.

¹⁸⁵ In Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA), the Court of Appeal discussed comity in terms that suggested it was principally relevant as a matter of transnational case management, and that the question of interference in principle was less relevant than it had previously been. It is suggested, however, that these comments should be seen as focused on the contractual situation within which the Court was operating, and the question of delay which was before it; and do not create any new principle in the non-contractual case. The law as laid down by the Supreme Court and House of Lords and Court of Appeal firmly establishes that, outside the contractual case, comity does operate to discourage interference in principle: see para 4.80. For recent decisions illustrating the true role of comity as a question of principle and judicial sovereignty, and not merely transnational case management, see Masri v Consolidated Contractors) (No 3) [2009] QB 503 (CA) at [16], [81]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42]; and Dawnus Sierra Leone v Timis Mining Corporation [2016] EWHC 236 [66].

¹⁸⁶ Barclays Bank v Homan [1993] BCLC 680, 691–92 (Hoffmann J), upheld on appeal [1993] BCLC 680 (CA); ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 161, 168 (Steyn J); [1991] 1 Lloyds Rep 429 (CA) 438, 440; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [56].

¹⁸⁷ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138G–H; Fort Dodge Animal Health v Akzo Nobel [1998] FSR 222 (CA) 247; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [81].

¹⁸⁸ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892E–F; ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 429 (CA) 440; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 133E–F; Turner v Grovit [2002] 1 WLR 107 (HL) [25]–[28]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [81]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [53]; Ellerman Lines v Read [1928] 2 KB 144 (CA) 158.

In a number of the earlier cases, the phrase ‘great caution’ was used: Cohen v Rothfield [1919] 1 KB 410, 413; Settlement Corp v Hochschild [1966] 1 Ch 10, 15 (‘it is only exercised very rarely, with great caution’); Mike Trading and Transport v R Pagnan & Fratelli (The Lisboa) [1980] 2 Lloyds Rep 546 (CA) 549, 551 (‘the jurisdiction will be exercised with great caution, especially where the defendant to the English proceedings is plaintiff in the foreign proceedings’); Tracomin v Sudan Oil Seeds (Nos 1 and 2) [1983] 1 WLR 1026 (CA) 1035; Marc Rich v Società Italiana Impianti (The Atlantic Emperor) (No 2) (Hobhouse J, 11 November 1991); Bank of Tokyo v Karoon [1987] AC 45 (CA) 59G (‘extreme caution’); and see also Barclays Bank v Homan [1993] BCLC 680, 686 (Hoffmann J) (‘great circumspection’). In Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2004] 1 Lloyds Rep 471 (CA) 475, Evans-Lombe J accepted that ‘great caution’ had to be exercised. However, Mance LJ, in the same case, observed that the addition of the adjective ‘great’ did not reflect the authoritative statements of the law in Airbus, Aérospatiale, and (sic) Turner v Grovit: at 480 [39]. It is suggested that Mance LJ’s approach is to be preferred, not least because, even if English judges are sometimes cautious when granting anti-suit relief, describing them as ‘greatly’ cautious does not reflect reality. In the recent authorities, the language used has been ‘caution’ not ‘great caution’: see eg Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) at [16], [81]; Deutsche v Highland, at [50]; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) at [41]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [41]; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁸⁹ Aggeliki Charis Compania Maritima v Pagnan (The Angelic Grace) [1995] 1 Lloyds Rep 87 (CA) 95. See generally Ch 7, section E, ‘The Angelic Grace Principles’.

¹⁹⁰ Bankers Trust International v PT Dharmala Sakti Sejahtera [1996] CLC 252, 263B–F.

¹⁹¹ Beazley v Horizon Offshore Contractors [2005] Lloyds Rep IR 231 [40].

¹⁹² Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138G–140E; Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) at [114]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [59]; see also Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 609; Vitol Bahrain v Nasdec General Trading [2013] EWHC 3359 [41]. In Turner v Grovit [2002] 1 WLR 107 (HL) 117D, 119C–H, Lord Hobhouse sought (obiter) to redefine the concept of comity in terms of whether the injunction claimant, rather than the English court, has a ‘legitimate interest’ in restraining the injunction defendant’s conduct, or a ‘sufficient interest’ in asking the English court for a remedy. This wording was adopted, again obiter, in Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]. But Lord Hobhouse’s approach is contradictory, and not complementary, to the authority of Airbus v Patel, and is thus not the law. It is also submitted, with respect, that Lord Goff’s approach is correct in principle. When the court is assessing the demands of comity, it must move beyond the sphere of private right into the realm of public policy, and must assess not merely the legitimate interests of the injunction claimant, but also the adequacy of its own connection with the matters in question. The requirement of a sufficient interest or connection finds support in public international law: see FA Mann, ‘The Doctrine of Jurisdiction in International Law’ Part I (1964) 111 Recueil des Cours 1 149–50. In Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [81], Lawrence Collins LJ suggested that ‘Comity may be decisive where the English court is asked to grant an anti-suit injunction when the case has no relevant connection with England, since to grant an injunction in such a case may be a breach of international law.’

¹⁹³ In Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138F–G, Lord Goff expressly excluded contractual cases from consideration when imposing this requirement. But there is no reason why the requirement of a ‘sufficient interest’ should not apply to contractual cases (see Ch 7, section G, ‘Injunctions in Support of a Foreign Forum’), although it will be easily satisfied where there is an English exclusive forum clause.

¹⁹⁴ Barclays Bank v Homan [1993] BCLC 680, 686 (per Hoffmann J, upheld by Court of Appeal at 699–702; Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610; this aspect of Homan was adopted in Mitchell v Carter [1997] 1 BCLC 673, 687; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [56]; Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [26]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42].

¹⁹⁵ Alternative forum cases are those where the litigation could proceed in either or both of England or the foreign jurisdiction: see Ch 5, section B, ‘Alternative Forum Cases’.

¹⁹⁶ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896F–G; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138H, 140C; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA), [2010] 1 WLR 1023 [50]. If the other court is more natural, that tells against the granting of the injunction: Jopson v James (1908) 77 LJ (Ch) 824, 830; Re Tadros (Deceased) [2014] EWHC 2860 [78].

In Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [25], the Court of Appeal, giving a summary of law as undisputed before it, said obiter that it was a necessary condition of the grant of a non-contractual injunction that England had to be the natural forum for the resolution of the dispute. That is not correct. It is clear that exceptions are possible to any requirement of natural forum. One example among others is that injunctions can be granted in ‘single forum’ cases. See S Males QC, ‘Comity and Anti-Suit Injunctions’ [1998] LMCLQ 543, 544–45, A Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003) paras 4.94–4.95 (hereafter ‘Bell’); and Ch 5, section D, ‘Single Forum Cases’.

¹⁹⁷ Paragraph 4.93.

¹⁹⁸ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134F, 135B, 138F–H.

¹⁹⁹ Paragraph 4.67 above.

²⁰⁰ In Turner v Grovit [2002] 1 WLR 107 (HL) [27], it was suggested, obiter, that the injunction claimant must be a party to existing litigation in England which needs to be protected. This was adopted, again obiter, in the summary of the law in Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42], per Rix LJ. However, those obiter comments are not the law. They are inconsistent with the authoritative statements of the tests in the line of cases from Aérospatiale to Airbus v Patel to Deutsche v Highland and Stichting v Krys (see n 6) which contain no such requirement. They are also contrary to many previous decisions upholding the possibility of free-standing injunctions which are not sought to protect existing English proceedings. One example is single forum injunctions such as Midland Bank v Laker Airways [1986] QB 689 (CA); discussed further in Ch 5, section D. Another example is injunctions in the alternative forum situation to protect potential but not yet actual English proceedings: see eg in the contractual situation AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2013] 1 WLR 1889 (SC) and in non-contractual cases Royal Bank of Scotland v Hicks [2011] EWHC 287 [65], where Floyd J considered but did not follow the obiter comment in Turner. Other examples include patent cases where injunctions have been granted to restrain vexatious harassment of customers: Landi den Hartog v Sea Bird (Clean Air Fuel Systems) [1976] FSR 489; Jacey (Printers) v Norton & Wright Group [1977] FSR 475; and injunctions to restrain winding-up proceedings: see Mann v Goldstein [1968] 1 WLR 1091, and Ch 6, section F, ‘Injunctions to Protect Winding-Up Proceedings’. See also Ch 5, para 5.23.

²⁰¹ Single forum cases are those where the litigation will either proceed in the foreign jurisdiction or not at all: see Ch 5, section D, ‘Single Forum Cases’.

²⁰² Midland Bank v Laker Airways [1986] QB 689 (CA) 714–15; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138E, 139G; although see the reservations expressed about this in Airbus at 138C.

²⁰³ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 139G; Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [26], [33].

²⁰⁴ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42]. As to protection of the policies of the English forum, see section I, ‘Protection of English Public Policy’.

²⁰⁵ See eg Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719, 721–22. The factors that determine which court is the appropriate one to determine questions of forum overlap with conventional forum non conveniens considerations, but they are not identical. The criterion of sufficient connection gives greater significance to jurisdictional factors, and less to difficulties of trial management.

²⁰⁶ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138G–H, 140F–141C; Evialis SA v SIAT [2003] 2 Lloyds Rep 377, 403; Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267 [71], [73]. See also the earlier case of Hughes v Hannover [1997] 1 BCLC 497 (CA), where the point was put in terms of the need for a ‘relevant link’ to England: at 504 (per Knox J). E Peel, ‘Anti-Suit Injunctions: The House of Lords Declines to Act as an International Policeman’ (1998) 114 LQR 543 considers that Airbus is a decision ‘which should be viewed with some regret’ and argues that ‘it is difficult to see that the affront which may be caused is significantly greater where the court which grants the injunction is not itself the natural forum’. But for interesting commentary from a US perspective, see K Anderson, ‘What can the United States Learn from English Anti-Suit Injunctions? An American Perspective on Airbus Industrie GIE v Patel’, (2000) 25 YJIL 195.

²⁰⁷ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 140F–141C.

²⁰⁸ In Hughes v Hannover [1997] 1 BCLC 497 (CA), the Bermudan court, before which insolvency proceedings were under way, asked the English court, by way of a letter of request, to grant an anti-suit injunction restraining proceedings in third countries. It was held that the English court would have power to grant such an order under s 426 of the Insolvency Act 1986: at 503–04 (per Knox J); 516–18. However, the injunction was refused on the facts. As the decision was reached before Airbus v Patel, the issue of comity was not sharply formulated. But it is submitted that the result can be viewed as confirmation of the proposition in the text.

²⁰⁹ Foreign injunctions, including foreign anti-suit injunctions, are not enforceable in England at common law, or under the Administration of Justice Act 1920 or the Foreign Judgments (Reciprocal Enforcement) Act 1933: Airbus Industrie v Patel [1996] ILPr 465 (Colman J) [13]–[29]; Dicey, paras 14R-020 and 14-185. In theory, this barrier to enforceability may not exist under the Brussels–Lugano regime (so long as it applies); but the likelihood of the English court being asked to enforce an anti-suit injunction granted by a fellow Brussels–Lugano court is slim.

²¹⁰ See eg In re North Carolina Estate (1889) 5 TLR 328; Bank of Tokyo v Karoon [1987] AC 45 (CA) 59G; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892E; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19].

²¹¹ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [27]; and see previously ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 429 (CA) 438 (Mann LJ). Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [21]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [27]–[29].

²¹² Turner v Grovit [2002] 1 WLR 107 (HL) 117C.

²¹³ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [36]–[37]; and see earlier In re Liddell’s Settlement Trusts [1936] Ch 365 (CA) 373–74 (not an anti-suit case); Royal Exchange Assurance v Compania Naviera Santi (The Tropaioforos) (No 2) [1962] 1 Lloyds Rep 410, 420; Castanho v Brown & Root [1981] AC 557 (HL) 574B; ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 429 (CA) 439 (Mann LJ).

²¹⁴ Castanho v Brown & Root [1981] AC 557 (HL) 574B–D; see also Calenders and Diaries v Nuovo Instituto Italiano D’Arti Grafiche (Wood J, 14 February 1986).

²¹⁵ Royal Exchange Assurance v Compania Naviera Santi (The Tropaioforos) (No 2) [1962] 1 Lloyds Rep 410, 420; Board of Governors of the Hospital for Sick Children v Walt Disney Productions Inc [1968] Ch 52 (CA) 68G–69B, 71C–71F, 77F; Locabail International Finance v Agroexport [1986] 1 WLR 657 (CA) 664H, 665F; ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 429 (CA) 439; Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] EWHC 811 [138]. This conclusion is not entirely easy to reconcile with the authorities, such as Castanho v Brown & Root and Shell v Krys, that articulate the sweeping proposition that the court, in making an order, does not contemplate the possibility that it will not be obeyed. But it is suggested that those cases need only be interpreted as rejecting any general rule that unenforceability should be treated as a decisive factor against the grant of an injunction. It is unnecessary to treat them as laying down a converse absolute rule that unenforceability can never be a relevant consideration to the exercise of the court’s discretion, although the cases suggest that it will usually be a factor to which little weight should be accorded: see Royal Exchange Assurance v Compania Naviera Santi (The Tropaioforos) (No 2) [1962] 1 Lloyds Rep 410, 420; Board of Governors of the Hospital for Sick Children v Walt Disney Productions [1968] Ch 52 (CA) 68G–69B, 71C–71F, 77F.

²¹⁶ Barclays Bank v Homan [1993] BCLC 680, 691 (Hoffmann J). See also in the contractual context Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] EWHC 811 [138].

²¹⁷ See eg Moore v Moore (1896) 12 TLR 221 (neither party domiciled in Austria).

²¹⁸ Barclays Bank v Homan [1993] BCLC 680, 691 (Hoffmann J), 701 (CA).

²¹⁹ Moor v Anglo-Italian Bank (1879) 10 Ch D 681, 690–91; Jopson v James (1908) 77 LJ (Ch) 824, 830; and see Impala Warehousing and Logistics (Shanghai) v Wanxiang Resources (Singapore) [2015] EWHC 811 [138].

²²⁰ Western Electric v Milgo Electronic Corp 450 F Supp 835 (SD Fla 1978); D Tan, ‘Anti-Suit Injunctions and the Vexing Problem of Comity’ (2005) 45 Virg J Intl Law 283, 337–38.

²²¹ British Airways Board v Laker Airways [1985] AC 58 (HL) 84E–G; Midland Bank v Laker Airways [1986] QB 689 (CA) 700D, 704H–705C, 715C–D; see also Bitmac v Creosote Producers Association (CA, 1 January 1986).

²²² Evialis v SIAT [2003] 2 Lloyds Rep 377, 403; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

²²³ Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA), saying that the question was not one of ‘offence to individual judges’, ‘who are made of sterner stuff’.

²²⁴ See Ch 8, section E, ‘Comity’, paras 8.25–8.30.

²²⁵ Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

²²⁶ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 140D.

²²⁷ In Barclays Bank v Homan [1993] BCLC 680, 688, 691, upheld on appeal [1993] BCLC 680 (CA), Hoffmann J suggested that comity was no longer a restraint where ‘the foreign court is, judged by its own jurisprudence, likely to assert a jurisdiction so wide either as to persons or subject matter that to English notions it appears contrary to accepted principles of international law’. However, he concluded on the facts before him that the assertion of US bankruptcy jurisdiction by the US court would not be ‘so egregious a claim of extra-territoriality that justice requires that it should be prevented by injunction’ (as to his specific language, see n 91). See also Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894E; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65] and Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42], where the injunction was justified in significant part because the Dutch court’s jurisdiction was ‘exorbitant’.

²²⁸ Paragraph 4.54 and n 112.

²²⁹ Barclays Bank v Homan [1993] BCLC 680, 688 (Hoffmann J).

²³⁰ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 140D–E.

²³¹ Barclays Bank v Homan [1993] BCLC 680, 688 (Hoffmann J); followed in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42].

²³² Further, reliance on English public policy on its own to justify the grant of an injunction is itself controversial: see section I, ‘Protection of English Public Policy’. The proposition entertained here is more limited, namely that public policy imperatives could justify a loosening of the constraints of comity.

²³³ Barclays Bank v Homan [1993] BCLC 680, 690 (Hoffmann J); Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 359 (CA) [50], [59]; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [36]–[40]; Jewel Owner v Sagaan (The MD Gemini) [2012] 1 Lloyds Rep 672 [21].

²³⁴ Dawnus Sierra Leone v Timis Mining Corporation [2016] EWHC 236 [66].

²³⁵ For the language of normally, see Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134F.

²³⁶ See among many others, Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894, 896; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [53]–[56].

²³⁷ For an example of departure, see Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610.

²³⁸ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134F, 135B, 138F–H.

²³⁹ The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [109].

²⁴⁰ The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [110] and Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610. This is perhaps also implicit in Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [56].

²⁴¹ Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [55].

²⁴² See eg Morris v Davies [2011] EWHC 1272 [20], [32], [33]; Re Tadros (Deceased) [2014] EWHC 2860 [71]–[72]; Vitol Bahrain v Nasdec General Trading [2013] EWHC 3359.

²⁴³ Paragraph 4.67 above.

²⁴⁴ The Abidin Daver [1984] AC 398 (HL); Spiliada Maritime v Cansulex [1987] AC 460 (HL).

²⁴⁵ The Abidin Daver [1984] AC 398 (HL) 415F; approved in Spiliada Maritime v Cansulex [1987] AC 460 (HL) 478A; Amchem Products v British Colombia (Workers Compensation Board) [1993] 1 SCR 897 (Can SC) 916.

²⁴⁶ Spiliada Maritime v Cansulex [1987] AC 460 (HL) 475C, 477G, 478C, 482E, 483A and H.

²⁴⁷ See eg Heilmann v Falkenstein (1917) 32 TLR 383; Vitol Bahrain v Nasdec General Trading [2013] EWHC 3359; Re Tadros (Deceased) [2014] EWHC 2860 [72].

²⁴⁸ Vitol Bahrain v Nasdec General Trading [2013] EWHC 3359 [41]; Re Tadros (Deceased) [2014] EWHC 2860 [72].

²⁴⁹ Spiliada Maritime v Cansulex [1987] AC 460 (HL) 478A–B. It is worth noting that, although it is a material consideration that the injunction defendant is resident or domiciled abroad, there is no rule or presumption that injunctions will not be granted to restrain foreigners from suing before their own courts. Some of the older cases suggest that such a principle might exist, notably Carron Iron v Maclaren (1855) 10 ER 961, 5 HLC 416, 437, 441–44 (see further, Ch 2, paras 2.11–2.13), but under the modern approach following Aérospatiale the residence of the injunction defendant is merely one factor in the assessment of what is the natural forum: para 4.23, n 42.

²⁵⁰ Re Tadros (Deceased) [2014] EWHC 2860 [72]. See in contrast Morris v Davies [2011] EWHC 1272 [20], [32], [33].

²⁵¹ CNA International (UK) v Office Depot International (UK) [2005] Lloyds Rep IR 658 [28].

²⁵² Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 897–99; Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610; Morris v Davies [2011] EWHC 1272 [20], [32], [33]; Salgaocar v Jitendra [2018] SGHC 90 [48].

²⁵³ Amchem Products v British Colombia (Workers Compensation Board) [1993] 1 SCR 897 (Can SC) 935 (although this case does not represent English law in other respects).

²⁵⁴ Ascot Commodities v Northern Pacific Shipping (The Irini A) [1999] 1 Lloyds Rep 196, 200; however, cf Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [17].

²⁵⁵ Paragraph 4.25.

²⁵⁶ Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [65].

²⁵⁷ There was held to be no criticizable delay in Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560, 564 [18]. Delay was excusable in The Eras Eil Actions [1995] 1 Lloyds Rep 64, 86; and was thought justifiable in Sabbagh v Khoury [2018] EWHC 1330 [33]–[36]. On the other hand, delay was not excusable, and contributed to the refusal to grant the injunction, in Bloch v Bloch [2003] 1 FLR 1 [57], [59]–[62], [85]; Noble Assurance v Gerling-Konzern General Insurance [2008] Lloyds Rep IR 1 [100]; and Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA). See also Moor v Anglo-Italian Bank (1879) 10 Ch D 681, 690–91.

²⁵⁸ Berliner Bank v C Czarnikow Sugar (The Rama) [1996] 2 Lloyds Rep 281, 298.

²⁵⁹ See eg Bloch v Bloch [2003] 1 FLR 1 [57], [59]–[62], [85].

²⁶⁰ Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J), 691–92.

²⁶¹ Noble Assurance v Gerling-Konzern General Insurance [2008] Lloyds Rep IR 1 [99]–[109]. See also Banque Cantonale Vaudoise v Waterlily Maritime [1997] 2 Lloyds Rep 347, 357–58, where in place of a full anti-suit injunction the court granted an order restraining the injunction defendant from advancing certain contentions pending the trial of the English action, which would be expedited.

²⁶² Royal Bank of Scotland v Highland Financial Partners [2012] 2 CLC 109 [175]–[195], [2013] 1 CLC 596 (CA) [158]–[172].

²⁶³ Hospira UK v Eli Lilly [2008] EWHC 1862 (Pat) [11]–[13].

²⁶⁴ Hospira UK v Eli Lilly [2008] EWHC 1862 (Pat) [11]–[13].

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