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Oxford Law Citator

5 Non-Contractual Anti-Suit Injunctions

Thomas Raphael

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

Thomas Raphael QC

Previous Edition (1 ed.)

Content type:: Book content

Product:: Private International Law [PRIL]

Series:: Oxford Private International Law Series

Published in print:: 12 September 2019

ISBN:: 9780198778936

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

(p. 117) 5 Non-Contractual Anti-Suit Injunctions

A. Introduction

5.01 This chapter explores the landscape of the cases in which non-contractual anti-suit injunctions have been sought in respect of proceedings abroad. It is divided into the following sections:

• Alternative forum cases.
• Injunctions to prevent relitigation.
• Single forum cases.
• Insolvency and justice between creditors.
• The relevance of stay applications before the foreign court.
• Injunctions to restrain ancillary and collateral proceedings.
• ‘Anti-anti-suit’ injunctions.
• Anti-enforcement injunctions.

B. Alternative Forum Cases

5.02 A distinction needs to be drawn between ‘alternative forum’ and ‘single forum’ cases, although it is never absolute. In an alternative forum case,¹ the claim which is being made in the foreign action could be heard either in England or abroad, or in both jurisdictions. The possible claims in the competing jurisdictions do not need to be identical, provided that they are substantially similar.² In contrast, in a single forum case the foreign claim could (p. 118) only be brought in the foreign country, and no similar claim could be brought in England.³ But if additional and different remedies could be claimed abroad in respect of the same or similar substantive rights, the situation will probably still be treated as an alternative forum case.⁴

1. General Principles in Alternative Forum Cases

5.03 The existence of concurrent⁵ proceedings on the same or substantially similar subject matters in England and abroad, where the claimant abroad is the defendant in England,⁶ does not in itself mean that the pursuit of the foreign action is vexatious or oppressive, and is not a sufficient condition to justify the grant of an injunction.⁷ In addition, a submission by the injunction defendant to the jurisdiction of the English court should not be treated as sufficient to justify an injunction,⁸ as submission will occur in any English action which is defended after the failure of a jurisdiction challenge. Nor, conversely, is submission to the jurisdiction of the English courts a necessary condition of a finding of vexation or oppression (or unconscionability).⁹ However, in general, the greater the positive and voluntary involvement of the injunction defendant in the English proceedings, and the longer the English action has been allowed to proceed before the commencement of the parallel foreign proceedings, the stronger the case for an injunction.¹⁰ Thus vexation may be found in the facts that the injunction defendant has first submitted to English jurisdiction and then (p. 119) sought vexatiously and oppressively to prolong or multiply the litigation by commencing further proceedings abroad.¹¹

5.04 It is also now established that foreign proceedings will not be vexatious or oppressive, and an injunction cannot be justified, solely on the grounds that England is the natural forum for the litigation in the eyes of the English court, or that the English court has dismissed a stay on the grounds of forum non conveniens. The foreign proceedings must be shown to be vexatious or oppressive by reference to the circumstances as a whole, including some other factors, or there must be some additional reason why the ends of justice require the grant of an injunction.¹²

5.05 Nevertheless, if, in the eyes of the English court, England is the natural forum and the foreign jurisdiction is inappropriate, this can be a significant factor in support of a finding that parallel foreign proceedings are vexatious or oppressive.¹³ The court recognizes the undesirable consequences that may result if concurrent actions in respect of the same subject matter proceed in two different countries. There may be conflicting judgments from the two courts concerned, or an ‘ugly’, or ‘unruly’ rush to get one action decided first to attempt to create a res judicata in the other court.¹⁴

2. Subjectively Vexatious Proceedings

5.06 If the parallel foreign proceedings have been brought in bad faith, or with the intention and effect of harassing the injunction claimant, rather than actually seeking justice in the foreign forum, this can constitute subjective vexation, which can justify an injunction.¹⁵ There is nothing inherently improper in preferring a foreign jurisdiction for tactical purposes.¹⁶ But where no adequate explanation is advanced for why competing foreign proceedings have been brought, the court may well be willing to infer that the foreign proceedings are motivated by a deliberate strategy of harassment and vexation.¹⁷

(p. 120) 3. Objectively Vexatious or Oppressive Proceedings

5.07 Foreign proceedings can be vexatious or oppressive due to their nature or consequences. Duplicative foreign proceedings have been restrained where the foreign forum was not a natural forum and its remedial law contained alien and onerous remedies compared to the natural forum;¹⁸ where a weak appeal, which was likely to be expensive and protracted, was brought against the foreign first instance court’s decision to stay the proceedings before it, and England was clearly the natural forum;¹⁹ where the aim of the foreign proceedings was to pre-empt proceedings in the natural forum;²⁰ where the foreign proceedings were viewed as an illegitimate attempts to ‘hijack’ the English court’s determination of questions going to its own jurisdiction, although the English court was the natural forum to decide questions of forum;²¹ where while participating in English proceedings one party brought foreign attachment proceedings as a pre-emptive strike to prevent any English judgment being effective;²² where arrest proceedings were hopeless and served no purpose;²³ and where the injunction defendant proclaimed that he would be able to manipulate the foreign judiciary illegitimately.²⁴ It has been suggested that it would be oppressive to commence arrest proceedings abroad where the underlying claim in question has been stayed in England due to a failure to provide security for costs.²⁵

5.08 Further, if the dispute between the injunction claimant and injunction defendant could necessitate the bringing of related proceedings against connected parties, which should as a matter of justice and sensible case management be determined in third-party proceedings heard together with the original action, and such third-party proceedings could be effectively brought in England, but would not be feasible in the foreign action, this can support a conclusion that the foreign proceedings would be oppressive.²⁶

5.09 It is possible to support an argument of oppression on the basis that the foreign legal system is unfair or incapable of doing justice, but the English courts will be reluctant to make any such finding, and will not do so without concrete evidence.²⁷ This does not, however, (p. 121) prevent the case for an anti-suit injunction being supported by evidence about unattractive practical consequences of the foreign litigation, such as the likely cost and length of the foreign proceedings.²⁸ There has been a considerable debate about whether certain features of the US legal system, such as contingency fees, treble damages, and jury trials, can be factors that support a finding of oppression: the prevailing view appears to be that these can amount to illegitimate advantages, and thus contribute to oppression, if the USA is clearly an inappropriate forum for the litigation.²⁹

5.10 It is not inherently vexatious or oppressive to bring a claim to which the foreign court will apply a different substantive law than would be applied in England, even where this would give a significant advantage to the claimant abroad, although the position can be different if the foreign jurisdiction is not a natural forum for the dispute or the application of the foreign law would be inappropriate.³⁰ There are some authorities which suggest that foreign (p. 122) proceedings may be vexatious if they seek to apply a law which is different from the parties’ express choice of law.³¹ However in The Lucky Lady, the fact that foreign conflicts rules might mean the foreign court would reach a different result on whether English law was the agreed choice of law was not sufficient to justify an injunction.³²

5.11 In contrast, the mere inconvenience arising from the pursuit of the parallel foreign proceedings will not suffice to justify a finding of vexation or oppression, even if the inconvenience is significant, unless there is some aspect of the inconvenience which would amount to an injustice. This is so even if both sets of proceedings are likely to be tried at around the same time, with hearings and judgments overlapping.³³

5.12 Further, the courts have concluded that foreign proceedings were not vexatious or oppressive in all the circumstances, in cases where the foreign jurisdiction was the most appropriate forum for the litigation;³⁴ where England was not a significantly more appropriate forum for the litigation;³⁵ where there would be overlapping proceedings in the competing jurisdictions whether or not the injunction was granted;³⁶ and where security that had been obtained in the foreign jurisdiction was a legitimate advantage for the injunction defendant.³⁷ In one case, where third-party proceedings were commenced by a defendant (p. 123) abroad, the fact that the defendant had not had a free choice as to where he was initially sued was a factor against a finding that the third-party proceedings were vexatious or oppressive.³⁸ It has also been held in one case that oppression is diminished where a potentially effective application to stay the foreign proceedings on forum non conveniens grounds could be, but has not been, made to the foreign court.³⁹

5.13 Potential oppression can be disarmed by the provision of appropriate undertakings by the injunction defendant not to rely on features of the foreign proceedings that would otherwise be oppressive.⁴⁰

4. Double Claims

5.14 In the normal alternative forum case, each party will have commenced litigation in his preferred forum, so that the claimant in England is the defendant abroad. However, in certain cases, a claimant will commence actions on the same subject matter in two different jurisdictions,⁴¹ and this ‘double claim’ situation deserves separate treatment.

5.15 The response of the English courts to a double claim situation will depend on whether the double claimant has a legitimate purpose for bringing two claims in relation to the same subject matter in two different jurisdictions.⁴² In one case it was held that where a claimant had commenced his second set of claims solely for the purposes of preventing a time bar in the second jurisdiction, and did not intend to pursue them if his primary set of claims can proceed in the first jurisdiction, there was no vexation.⁴³ Similarly, it may well be legitimate to commence duplicate claims where the secondary claim is intended only to obtain security, and will not be pursued on the merits.⁴⁴

5.16 If, however, there is no legitimate reason for pursuing two claims on the same subject matter, then the pursuit of both proceedings is likely to be viewed as vexatious, or an abuse of process, and if so the claimant, on application by the defendant in the English proceedings, will (p. 124) be put to his election by the court as to which set of proceedings he wishes to continue.⁴⁵ If in such a case the ‘double claimant’ elects to pursue the English proceedings, the court will require him, as a condition of permitting them to proceed, to undertake to procure an adjournment, or stay, or discontinuance, as appropriate, of the foreign proceedings.⁴⁶ If he elects to pursue the foreign proceedings, he will have to bring the English proceedings to an end in one way or another.⁴⁷ If the English proceedings are stayed or discontinued, then there will be no basis to restrain the foreign proceedings unless there are independent grounds to restrain them such as vexation.⁴⁸ However, the ‘double claimant’ may not have a free election: there may be circumstances in which his involvement in English proceedings has been such that he will not be permitted to discontinue or stay them, in particular if it would now be an abuse or vexatious for him to do so. If so, the duplication caused by the continuation of the foreign proceedings may justify an injunction to restrain them.⁴⁹

C. Injunctions to Prevent Relitigation

5.17 The recognition to be awarded to an English judgment by a foreign court is a matter of the foreign court’s own national law, or international treaty.⁵⁰ It could therefore be argued that an anti-suit injunction should not be granted to restrain claims in a foreign country solely on the ground that they ignore, or seek to obtain a result contrary to, a pre-existing English judgment.⁵¹ In The Western Regent, it was held that it was not vexatious and oppressive in (p. 125) itself to bring claims in a foreign jurisdiction for amounts which exceed a limitation decree granted by the English court.⁵² It could therefore be argued that some additional factor over and above relitigation should be required to render foreign proceedings vexatious and oppressive.⁵³

5.18 However, in Masri v Consolidated Contractors, Lawrence Collins LJ rejected this argument, and concluded that the fact that the respondent is seeking to relitigate in a foreign jurisdiction matters which were already res judicata between himself and the applicant by reason of an English judgment could be a sufficient ground for the grant of an anti-suit injunction. He described a case ‘in which the judgment debtors are seeking to relitigate abroad the merits of a case which, after a long trial, they have lost in England’ as ‘a classic case of vexation and oppression’.⁵⁴ He also justified the injunction before him on the grounds that it was necessary to protect the ‘jurisdiction’ of the English court, in the form of protecting its ‘judgments’.⁵⁵ The Western Regent was distinguished, Lawrence Collins LJ concluding that it did not lay down any general principle outside the unusual context of limitation decrees.⁵⁶

5.19 Where a matter was not decided in the original English proceedings, but could and should have been raised in those proceedings, it has been held that in appropriate circumstances it can be an ‘abuse of process’ and thus vexatious and oppressive, to seek to raise those matters in subsequent foreign litigation.⁵⁷

5.20 Where foreign proceedings relitigate matters decided in arbitration, or amount to a collateral attack on an arbitration award, this can also amount to vexatious relitigation.⁵⁸ (p. 126) Such conduct may also amount to breaches of the arbitration agreement or implied terms thereof.⁵⁹

D. Single Forum Cases

5.21 The awkward but workable label of ‘single forum’ cases⁶⁰ describes situations where the claims made abroad can only be brought in the foreign forum, and cannot be brought in England.⁶¹ To fall within this category, the foreign claims must be materially different to possible claims in England. It is insufficient that the foreign court will apply a different law to the same set of disputes.⁶² Further, a case will not necessarily be a single forum case even if the foreign law provides for additional remedies, unavailable in England, for the same wrong.⁶³ The assessment of whether a possible English claim is a sufficiently close comparator will be a question of fact and degree in every case.

5.22 In a single forum case, England will not be the natural forum for the claims, as the only possible forum will be the foreign forum. The decision the court has to make is therefore not in which forum the claims should proceed, but rather whether they should proceed at all.⁶⁴ Any criterion or consideration that England should in general be the natural forum for the trial of the claim (to the extent this applies), is therefore inapplicable to single forum injunctions.⁶⁵ The risk of injustice if a single forum injunction is granted is real,⁶⁶ which means that particular caution must be displayed before granting such a drastic form of relief.⁶⁷

(p. 127) 5.23 In some general summaries of the law, it has been suggested obiter that (if contractual cases are left to one side) an anti-suit injunction can only be granted if the injunction claimant is a party to litigation in England, with which the injunction defendant’s foreign proceedings interfere.⁶⁸ If so, single forum injunctions would be illegitimate in principle. However, these summaries are mis-statements and not the law.⁶⁹ Although the principles of comity mean, in general, that in non-contractual cases anti-suit injunctions are relatively rare without corresponding English proceedings such proceedings here are not a requirement. Lord Goff expressly recognized in Airbus v Patel that the courts may in principle grant single forum injunctions where there is a sufficient connection with the English forum.⁷⁰

5.24 What is unclear is the breadth of the power to grant single forum injunctions. In Airbus v Patel, Lord Goff did not identify what would amount to a sufficient connection in the single forum case, observing merely that assessment of this question might involve consideration of whether the relevant transactions were connected with England, and of whether the injunction was required to protect the policies of the English forum.⁷¹ It follows that the past case law provides an uncertain guide to the modern law on single forum injunctions; and the following discussion, which analyses the historical cases, must be read subject to that caution.

1. Types of Single Forum Injunction

5.25 The case law on single forum injunctions is sparse and the disparate decisions have not yet been crystallized into any coherent order. Three main types of situation can be identified: (a) cases of ‘pure vexation’, where the foreign litigation is without any merit; (b) situations where litigation in the foreign forum would wrongfully impose foreign law or jurisdiction onto essentially English relationships; and (c) injunctions granted to protect the process of the English courts or the jurisdiction of the English courts.⁷² However, these situations should not be treated as exhaustive.

2. Weak and Hopeless Claims

5.26 In some ‘single forum’ cases it is alleged that the foreign litigation is said to be vexatious because the foreign claims have no merit, or are sure to fail in the foreign forum, or are brought in bad faith. However, single forum injunctions justified by the weakness of the foreign claim alone pose problems of comity. Especially where the foreign court has adequate (p. 128) remedies to dismiss unsatisfactory claims at an early stage,⁷³ it should, in general, be a matter for the foreign court to determine whether a case before it will or should succeed, under its own law and procedure.⁷⁴ The English court is not the normal forum to engage in summary determinations of the merits of foreign proceedings.⁷⁵ Consequently, save in the rare case where it is ‘plain’ that the foreign case is ‘bound to fail’, or ‘hopeless’,⁷⁶ allegations of the weakness of the foreign claim should not on their own be capable of amounting to vexation.⁷⁷ But the inherent apparent weaknesses of the foreign claim can, when taken together with other matters, be important factors in the overall assessment of vexation or oppression.⁷⁸ Different phrasing has been used as to when a finding of hopelessness might be made to justify an injunction: in Vitol Bahrain Males J concluded that it would only be in an ‘exceptional’ case that this would be appropriate, but in Midland Bank v Laker the phrasing was that such a case was ‘likely to be rare’.⁷⁹

5.27 In Elektrim v Vivendi, the Court of Appeal appeared to conclude that, in one of the rare cases where hopelessness was proven, such a finding could be sufficient, without more, to justify an injunction, although the reasoning is not entirely clear.⁸⁰ However, although Lawrence Collins LJ did not consider in Elektrim the principle that the English court must always have a sufficient interest in, or connection with, the matter in question to justify intervention⁸¹ it is submitted that this must be satisified even where the foreign claim is perceived as being hopeless. In Vitol Bahrain v Nasdec Males J concluded that the requirement of sufficient interest had to apply.⁸²

(p. 129) 5.28 Overall the trend of the authorities show a growing appreciation of the tensions with comity created by injunctions driven by the apparent weakness of the foreign claim.⁸³ Yet the judiciary do not yet appear to have settled on a single view of the right balance. Thus, a relatively restrictive approach was taken in Vitol Bahrain v Nasdec.⁸⁴ But in contrast Bryan J’s recent decision in The Al Khattiya does not display the same reticence.⁸⁵

3. Disputes and Relationships Centred in England and Subject to English Law

5.29 In Midland Bank v Laker, the English liquidators of an English company brought US anti-trust claims in the USA, which arose out of the provision and withdrawal of banking facilities in England, against English banks with no relevant connection to the USA. The Court of Appeal upheld the grant of interim injunctions restraining the liquidator from continuing with his US proceedings. The principal ground for the injunction was that it was ‘unconscionable’ to attempt to apply the alien remedies of US anti-trust law to acts done in England and ‘intended to be governed by English law’, and in respect of which there would be no claim under English law, where the banks had not ‘submitted themselves’ to US anti-trust law, having no relevant business in the USA.⁸⁶ In effect, the injunction was chiefly granted on the basis that the USA was an unnatural forum for the litigation, and that US law was an unnatural law to govern the legal relationships involved.⁸⁷

5.30 The decision in Midland Bank v Laker was, however, decided before Airbus v Patel, where Lord Goff elaborated the modern tests of comity. In arriving at his conclusion that comity required that the English court should have a ‘sufficient interest’ in the matter, Lord Goff considered the decision in Midland Bank v Laker closely, and observed that the primary justification for the injunction granted in that case was that ‘the relevant transaction was overwhelmingly English in character’. He observed that ‘it can be said that, on this basis, the decision was consistent with comity’, but expressly reserved his position as to whether (p. 130) the case was correctly decided.⁸⁸ The soundness of Midland Bank v Laker is therefore open to question. Nevertheless, unless the Supreme Court overrules it, the case is authority that, in appropriate circumstances, single forum injunctions can be granted to prevent disputes and relationships centred in England being litigated abroad, if the imposition of the foreign law and jurisdiction would be unnatural.⁸⁹ However, this power should be exercised with additional caution.⁹⁰ In contrast, where the injunction claimant’s conduct has brought the subject matter of the claim within the legitimate sphere of influence of the legal system of the foreign state, this will militate against the grant of the injunction.⁹¹

5.31 Differences between the foreign law under which the claim is made and English law, or between the foreign procedures and English procedure, are not in themselves sufficient to support a single forum injunction, provided that the exercise of the foreign jurisdiction and law over the subject matter is not unnatural or exorbitant. In Barclays Bank v Homan, Hoffmann J and then the Court of Appeal refused to grant an injunction to restrain US insolvency proceedings that would produce a different result from English insolvency proceedings.⁹²

4. Protection of the Jurisdiction of the English Court

5.32 The grant of an anti-suit injunction can be justified by the need to protect the process or jurisdiction of the English court.⁹³ This justification is most commonly relevant in alternative forum cases, but it could also apply in the single forum situation. Foreign proceedings can illegitimately interfere with the process or jurisdiction of the English courts, even if the actual claims in the foreign litigation can only be brought abroad.

Thus, for example, injunctions have been granted to restrain foreign claims, where insolvency proceedings are under way in England, and the proceedings abroad seek to gain an unfair advantage for one creditor by evading the pari passu distribution of assets in an English insolvency.⁹⁴ These cases could perhaps be viewed as ‘alternative forum’ situations, but in (p. 131) many the English insolvency process was not a genuinely alternative forum for the claims in question.⁹⁵ So a better analysis of these cases may well be that the English court is protecting the integrity of its insolvency jurisdiction, which includes protecting the performance by liquidators or administrators of their functions as officers of the court.⁹⁶ In Shell v Krys the Privy Council has also recently justified a similar injunction on the basis that it is protecting the policy of English insolvency law;⁹⁷ but it is also possible to view the decision as based on the protection of the jurisdiction of the court.⁹⁸

5.33 The decision in Shell v Coral (No 2) can also be viewed as an example of a single forum injunction granted to protect the jurisdiction of the English courts, although the phraseology was not expressly used. The English court had restrained the pursuit of earlier proceedings in Lebanon which were in breach of an exclusive forum clause. Further proceedings were then commenced by a related party, which were apparently hopeless and vexatious, and which also appeared to be an abusive attempt to evade the exclusive forum clause and the existing anti-suit injunction. Thomas J concluded that the court’s involvement in restraining the prior claim was an important factor in giving it a sufficient interest in the matter for the grant of an injunction to be consistent with comity.⁹⁹

5.34 Anti-anti-suit injunctions can also be viewed as examples of the grant of single forum injunctions to prevent interference with the process of the English court,¹⁰⁰ although they have not expressly been justified in those terms in England.¹⁰¹ They are discussed in section H.

E. Insolvency and Justice between Creditors

5.35 In the nineteenth^_century case law, injunctions were frequently granted to restrain creditors from evading England’s insolvency jurisdiction, and its policy of fair division among creditors, by bringing proceedings to execute against assets abroad.¹⁰² Anti-suit injunctions (p. 132) to protect English insolvency proceedings are still legitimate in principle, and can be viewed as injunctions granted to protect the integrity of the English jurisdiction, or preventing the evasion of its important public policies.¹⁰³ These situations are on the cusp of the division between alternative forum and single forum cases: it may be that the foreign claim will be unavailable in England, if the foreign law permits creditors to claim in some different way from English insolvency law.¹⁰⁴

5.36 However, the modern cases have adopted a different philosophy of intervention. In the nineteenth-century cases it appeared to be sufficient to justify an injunction that the foreign proceedings would produce a different result to the distribution of assets in an English insolvency. Yet, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ doubted whether this part of the anti-suit injunction’s history would be a good guide to the modern exercise of the power to restrain, and this has proved to be well founded.¹⁰⁵ In the modern context, the choice is now rarely between the operation of disciplined collective insolvency in England and a free-for-all abroad, as seems to have not uncommonly been the case in the nineteenth century.¹⁰⁶ Most developed countries have sophisticated insolvency laws and procedures enabling cross-border cooperation. Where the foreign jurisdiction has such laws, including procedures under which the orderly distribution of assets in the English insolvency can be protected where the foreign court thinks appropriate,¹⁰⁷ the underlying question will not be whether collective insolvency should be protected in principle, but rather whether the English court should impose its perception of what orderly collective insolvency requires in place of the foreign legal system’s approach.

5.37 With this in mind, a series of modern cases has adopted a restrained approach. Provided that the foreign legal system has a developed insolvency law, which pays due regard to the fair distribution of assets in the English insolvency, the normal assumption is that it should be for the foreign court to decide whether or not to stay or restrain the proceedings before it under its own law.¹⁰⁸ Although there will inevitably be differences between national insolvency laws governing how insolvencies and distributions should be managed, such a difference in itself will not usually be a legitimate ground for the grant of an injunction on its own.¹⁰⁹ Thus, in Barclays Bank v Homan, Hoffmann J concluded, in a case where there (p. 133) was a difference of detail between the insolvency laws of the UK and the USA, that so long as the assertion of the foreign state’s insolvency jurisdiction did not involve ‘egregious’ extraterritoriality, the interests of justice did not require it to be prevented by injunction.¹¹⁰ His reasoning was essentially upheld by the Court of Appeal, who also concluded that there was nothing vexatious or oppressive about the US proceedings.¹¹¹ Similarly, if a party gives appropriate undertakings to ensure that the fair distribution of assets in the English insolvency is respected, this may well render his foreign proceedings not liable to be injuncted.¹¹²

5.38 Further, the questions of whether the English court has a sufficient interest to intervene, or is the natural forum, should always be borne in mind.¹¹³ There is no rigid rule that injunctions will not be granted to restrain creditors resident abroad from making claims abroad in their ‘home’ courts;¹¹⁴ the residence of the creditor is merely one factor to consider in assessing whether the injunction is appropriate. But in the specific context of insolvency law, if the centre of main interest of the insolvent party is in the foreign country, it is unlikely that the English courts would have a sufficient interest to interfere with litigation there.¹¹⁵

5.39 However, this restrained approach does not prevent injunctions being granted in the insolvency context where this is appropriate. Thus, injunctions can be granted in the insolvency context if there is something vexatious or oppressive about the foreign proceedings. In Bloom v Harms, the creditor companies used US attachment proceedings to create a trap for post-administration payments by administrators in circumstances which were judged by the court to be vexatious, oppressive, and unconscionable.¹¹⁶ But vexation or oppression is not a necessary condition.¹¹⁷ Even independent of vexation or oppression, injunctions can be granted where the foreign action would amount to an illegitimate interference with English insolvency proceedings (which includes illegitimate interference with the performance of the duties of administrators or liquidators, who are officers of the court, and so does not require extant court proceedings). The injunction in Bloom v Harms was also justified on this basis because the injunction was required to protect the proper performance of their functions by the administrators.¹¹⁸ And, as envisaged by Hoffmann J in Barclays Bank v Homan,¹¹⁹ injunctions can be justified where the foreign proceedings do involve an exorbitant interference with the fundamental policies of English insolvency law (again, independent of vexation or oppression). In Shell v Krys, the Privy Council confronted a situation (p. 134) where Dutch law paid no regard to the existence of the English insolvency, and would have permitted the creditor to circumvent the fair distribution of assets. These rules were sufficiently exorbitant to justify an injunction even though the Privy Council specifically declined to find vexation or oppression.¹²⁰ However, the same result could probably have been justified in terms of protection of the English insolvency jurisdiction.

5.40 There are passages in Shell v Krys which suggest a return to the older approach of granting an injunction merely because the foreign proceedings would produce a different result to the English insolvency rules.¹²¹ But the better reading of the case is that what actually justified the injunction was the specific and ‘egregious’ nature of the particular situation, where the Dutch rules contained no protection of fair distribution, and allowed a creditor to steal a march, in a way which was ‘in principle inimical to the proper winding up process’. It was this that meant that ‘there is no room for deference to the Dutch court’s decision’.¹²² It is submitted the Privy Council did not intend to depart from the modern approach developed in cases like Barclays Bank v Homan.¹²³

5.41 In the New Zealand case of Compudigm, it was suggested that given the cooperative approach between courts dealing with insolvency internationally required by the UNCITRAL Model law on Cross Border Insolvency (which is in force in the UK¹²⁴), it would be inappropriate to grant anti-suit injunctions to halt proceedings in a foreign court bound by the Model Law.¹²⁵ No such rigid restriction has been, nor is likely to be, accepted in England. But it may be that the operation of the Model Law in the ‘target’ state will be another reason supporting the restrained approach discussed.

F. Stay Applications in the Foreign Court

5.42 English law has not yet provided a fully consistent answer to whether an injunction claimant should first seek a stay or dismissal of the foreign proceedings in the foreign court, before applying to the English court for an injunction.

5.43 In a number of older decisions, the courts had suggested that if it was possible to apply to the foreign court for a stay on the basis of principles analogous to forum non conveniens,¹²⁶ a failure to do so first could be a significant factor against the grant of an anti-suit injunction based on vexation and oppression,¹²⁷ because ‘generally speaking, in deciding whether or (p. 135) not to order that a party be restrained in the pursuit of foreign proceedings, the court will be reluctant to take upon itself the decision whether a foreign forum is an inappropriate one’.¹²⁸ In contrast, in contractual cases it has long been established that there is no need for a prior application for a stay.¹²⁹

5.44 However, any tendency to require a prior stay application appears to have faded out of the more recent case law, and there are many cases where non-contractual anti-suit injunctions have been sought but no weight has been given to the injunction claimant’s failure to apply first to the foreign court for a stay.¹³⁰ In recent summaries of the law of considerable authority there is no suggestion of such a requirement.¹³¹ In principle, it is doubtful that any preconception favouring a prior stay application is correct. It would pose risks of submission and could create unjustified delay, and would be inconsistent with the tendency of the modern case law to require expedition and discourage delay in seeking anti-suit injunctions. In Glencore v Metro, Moore-Bick J observed, in response to a submission that he ‘should await the outcome of an application by Glencore to the District Court to stay the proceedings on the grounds of forum non conveniens’ that:

in my view this is only likely to lead to further difficulty. The proceedings before the District Court are still at the earliest stage. If I am satisfied, as I am, that the continued prosecution of those proceedings by the shipowners would be vexatious and abusive, it is far better that I grant relief now rather than seek to act at a later stage. The parties will be spared the cost of preparing and presenting a motion to challenge the jurisdiction of the District Court and, (p. 136) in what I think is the unlikely event of the District Court’s allowing the action to continue, this court will be spared the risk of causing offence to the District Court by intervening in the proceedings after it has decided to assume jurisdiction.

Moore-Bick J went on to observe that he saw no reason why, once the court had decided that foreign proceedings were vexatious and oppressive, the same approach as adopted in contractual cases should not apply.¹³²

5.45 Even to the extent that any weight is given to the desirability of a a prior stay application to the foreign court in some cases, any such approach is riddled with exceptions. There are many situations where the absence of an application for a stay made to the foreign court is either insignificant or irrelevant. Thus, it can be so plain and obvious that the foreign proceedings are vexatious and oppressive that even requiring a party to apply for a stay or dismissal in the foreign court would be unjust.¹³³ Further, where the foreign court will not apply principles analogous to forum non conveniens in assessing whether or not to grant a stay,¹³⁴ where the foreign court is likely to assume an exorbitant jurisdiction,¹³⁵ or where the purpose of the injunction is to protect the jurisdiction of the English court,¹³⁶ the absence of a prior application for a stay abroad will not, it seems, be given material weight, as requiring it would be pointless or illogical.¹³⁷

5.46 Where the foreign court has already heard but refused an application to stop the proceedings before it, and has done so after applying principles of forum non conveniens similar to those used in England, or by reaching a conclusion which is substantively consistent with such principles, it may well not be in the interests of justice, nor consistent with comity, for the English court to seek, in effect, to override that decision by the grant of an injunction (p. 137) (unless some other factor justifies an injunction).¹³⁸ In contrast, if the foreign court has obtained and retained jurisdiction on a basis which appears to be alien or exorbitant, then a refusal of a stay by the foreign court has been given little significance.¹³⁹

G. Ancillary and Collateral Proceedings

5.47 This section considers the distinct¹⁴⁰ category of cases where the foreign proceedings do not decide the same substantive dispute, but instead interfere collaterally with an English trial or an English arbitration, for example by seeking remedies abroad that relate to the evidence to be used in the English hearing.

5.48 If foreign applications to obtain evidence abroad are sought with the authorization of orders of the English court, they will obviously be legitimate. However, there are jurisdictions, notably the USA, which allow their evidence-collecting procedures to be engaged for the purposes of an English action without any prompting from the English court, and differences of laws and procedures can mean that evidence may be obtainable abroad where it would not be obtainable in England.

5.49 In principle, it is not in itself an interference with the process of the English court, nor indeed inherently illegitimate, to obtain evidence for use in English court proceedings by applications to foreign courts which are apparently lawful under the foreign law, even if the means by which the evidence is to be gathered would not be available under English law, or the scope of evidence to be obtained would be broader than the English disclosure process would encompass.¹⁴¹ The foreign evidence-collecting proceedings in such cases merely expand, and do not interfere with, the English forensic process.¹⁴²

(p. 138) 5.50 However, the court will always retain the power to intervene if the ends of justice so require, and in particular if the foreign evidence-collecting procedures would upset the process of the English trial¹⁴³ or English arbitration,¹⁴⁴ or otherwise be vexatious or oppressive or unconscionable. If the foreign application would subvert orders of the English court in relation to disclosure,¹⁴⁵ or would be oppressive in the light of the way in which the English litigation has developed or will develop,¹⁴⁶ the court will not hesitate to intervene by injunction.

5.51 The occasion for much of the case law on this issue has been section 1782 of Title 28 of the United States Code, under which a litigant in proceedings outside the USA can apply to the US Federal Court to obtain disclosure, or depositions, from persons resident in the USA, for the purposes of the foreign proceedings.

5.52 An injunction was refused where, well before the trial of the English action, the section 1782 proceedings were seeking disclosure of relevant documents from third parties that would otherwise not have been disclosed in the English proceedings.¹⁴⁷ The court also declined to intervene where, although there were doubts about the relevance of the material sought, the appropriateness of granting the application sought could be addressed before the US District Court.¹⁴⁸ In Royal Bank of Scotland v Hicks, a general anti-suit injunction restraining proceedings in the USA was qualified to permit section 1782 applications, subject to a requirement that 7 days prior notice was given, to deal with any concerns about potentially abusive ex parte applications.¹⁴⁹

5.53 In contrast, an injunction was granted where the section 1782 application sought the taking of depositions and the disclosure of documents after the conclusion of the English trial, but before judgment,¹⁵⁰ and where the foreign proceedings would lead to the cross-examination of witnesses in the English action before the English trial, thus doubling the occasions on which they would be cross-examined.¹⁵¹ The court would also probably restrain an application under section 1782 to the US courts where it was clear that the evidence sought was irrelevant to, or inadmissible in, the English action.¹⁵²

5.54 Similarly, in Benfield Holdings Ltd v Richardson, the claimant in English proceedings had also commenced parallel New York proceedings, which were timetabled to be determined (p. 139) after the English trial, and had proposed to apply in those New York proceedings for orders for deposition of England-based witnesses who would be testifying for the defendant, before the hearing of the English trial. It was alleged by the claimant that the purpose of these depositions was to support claims for interim injunctions in the New York action, but there was no evidence of any genuine intention to claim injunctions, or genuine need for the depositions for that purpose. Langley J concluded that the New York application would unfairly disrupt the defendant’s trial preparation and give the claimant the unfair advantage of being able, in effect, to cross-examine the defendant’s witnesses before trial, and granted an injunction restraining any such deposition until after determination of the English trial.¹⁵³

5.55 The converse situation is where the foreign proceedings are brought to punish, dissuade, or prevent the use of evidence in the English action. The case law here is undeveloped.

5.56 However, it appears that the English court may well grant an injunction to restrain foreign proceedings which are brought, in bad faith, with the intention of dissuading a witness from giving evidence in England.¹⁵⁴ Further, if after the determination of an English action, the losing party then seeks damages in a foreign court on the basis of the winning party’s conduct in England, it is possible that this will be viewed as a ‘collateral attack’ on the court’s jurisdiction, and therefore restrained.¹⁵⁵

H. Anti-Anti-Suit Injunctions

5.57 Anti-suit injunctions, or analogous remedies, are granted by courts in legal systems around the world, and especially, but not exclusively, by courts in common law legal systems.¹⁵⁶ There have been many occasions when foreign courts have restrained the pursuit of English proceedings.¹⁵⁷ The English courts have generally accepted this with equanimity,¹⁵⁸ although vigorous objections have been expressed where it is felt that the foreign court has gone too far.¹⁵⁹

5.58 It would be logically indefensible for the English courts to object to foreign anti-suit injunctions granted to restrain English proceedings in all situations. The repeated statements (p. 140) by English courts that an English anti-suit injunction operates in personam only, and that it does not directly or illegitimately interfere with the jurisdiction of the foreign court, and can be consistent with the comity of nations, must mean that there will be situations where a foreign anti-suit injunction to restrain the pursuit of English proceedings should be accepted as legitimate. Further, there should be consistency between the English court’s ‘offensive’ and ‘defensive’ attitudes: if an English court would grant an anti-suit injunction in parallel circumstances, then any complaint about a foreign anti-suit injunction would be difficult to defend without hypocrisy.¹⁶⁰

5.59 Nevertheless, where foreign claims for an anti-suit injunction can be characterized as vexatious and oppressive, or in breach of contract, there is no absolute reason of principle why an ‘anti-anti-suit injunction’ should not be granted to restrain the foreign anti-suit injunction. However, the particular sensitivity of this type of claim, and the inherent risks of escalating conflicts between legal systems, should probably mean that anti-anti-suit injunctions should be granted with particular caution.¹⁶¹

5.60 The English case law on anti-anti-suit injunctions is sparse.¹⁶² They have not been treated as a separate category and are analysed under the same principles as general anti-suit injunctions. In non-contractual cases, the basic tests for non-contractual anti-suit injunctions, and thus most centrally the concepts of vexation and oppression (or unconscionability) have been applied,¹⁶³ sometimes with the modification that particular caution needs to be exercised.¹⁶⁴

5.61 In some of the authorities, the English courts appear to have proceeded on the basis that if England was the natural form for the determination of the underlying dispute, and also for the determination of the question of forum, then an attempt to ‘hijack’ the determination of the question of forum by a claim for an anti-suit injunction abroad would be likely to be (p. 141) vexatious and oppressive, at least once the English court had determined that it was the natural forum.¹⁶⁵

5.62 It is suggested, however, that in order for an anti-anti-suit injunction to be reconcilable with comity, the domestic court must be manifestly the appropriate forum for the determination of the question of forum. It would be inappropriate for an anti-anti-suit injunction to be deployed, in a case where there was a legitimate dispute as to the relative appropriateness of the different jurisdictions, merely because the domestic court had concluded that on balance it was the more natural forum for the trial of the merits.

5.63 If the parties have agreed to an exclusive English forum clause, a foreign anti-suit injunction to restrain substantive proceedings in England will be viewed as a breach of the clause, and can be restrained by injunction, on the basis that it is a breach of contract,¹⁶⁶ under the principles outlined in The Angelic Grace.¹⁶⁷ In Sabah Shipyard v Government of Pakistan, the parties had agreed to the non-exclusive jurisdiction of the English courts. A claim in Pakistan for an anti-suit injunction to restrain proceedings in England was held to be in breach of implied terms of the jurisdiction clause, and also to be vexatious and oppressive, as the parties had implicitly agreed at least that English litigation could not be treated as inappropriate, and an anti-anti-suit injunction was required to protect Sabah’s rights to non-exclusive jurisdiction against the Pakistani anti-suit injunction.¹⁶⁸ However, probably due to the particular risks of conflict with foreign courts raised by anti-anti-suit injunctions, there is case law suggesting that the English courts are relatively willing to accept that there may be ‘strong reasons’ not to grant an anti-anti-suit injunction.¹⁶⁹

5.64 Anti-anti-anti-suit injunctions may also be granted to protect the English court’s anti-suit injunction jurisdiction. In general, they are granted as an ancillary injunction as part of an order for a primary anti-suit injunction,¹⁷⁰ although a free-standing anti-anti-anti-suit injunction has been granted in one reported case.¹⁷¹ The case law has not yet explored the relevant tests, if any specific tests exist.

(p. 142) I. Anti-Enforcement Injunctions

5.65 The power to grant anti-suit injunctions includes the power to grant an anti-enforcement injunction, which restrains a party from seeking to enforce a foreign judgment, even in respect of potential enforcement in other foreign countries.¹⁷²

5.66 However, the modern approach to comity suggests that, at least in non-contractual cases, worldwide anti-enforcement injunctions will now be granted only in rare circumstances.¹⁷³ Where a judgment has been given in foreign state X, and the judgment creditor seeks to enforce that judgment within foreign states Y and Z, it is in general a matter for the courts of Y and Z, under their own law of enforcement, to conclude whether or not the judgment should be enforced there. The English court will often not have a sufficient interest in, or connection with, the enforcement of the judgment within Y or Z to justify imposing its views on whether the judgment should be enforced by courts in Y or Z, still less in the rest of the world.¹⁷⁴

5.67 In Ellerman v Read, the court held that it would grant an injunction to restrain enforcement of a foreign judgment obtained by breach of contract or by fraud, while Scrutton LJ appeared to consider that the court had sufficient interest to intervene because the contract was governed by English law, was partly to be performed in England, and the injunction defendant was a British subject.¹⁷⁵ But the fact that substantive foreign proceedings had been in breach of a London arbitration clause has been insufficient to warrant the grant of an anti-enforcement injunction in recent cases.¹⁷⁶ Instead, in the recent cases Ellerman v Read has been interpreted as depending on the proposition that the foreign judgment in that case was obtained by fraud.¹⁷⁷

5.68 Further, delay in seeking the injunction until after the foreign judgment is a significant factor in the assessment of comity. It means that the injunction to restrain enforcement may well, in effect, be seeking to undo what has already been done by the foreign court. The English courts have tended to regard this as a considerable interference with the foreign court’s jurisdiction, which is difficult to justify as a matter of comity.¹⁷⁸

(p. 143) 5.69 A similarly hesitant approach to anti-enforcement injunctions applies even where the foreign proceedings were in breach of a jurisdiction or arbitration clause, in particular because the delay can be a good reason not to grant the injunction.¹⁷⁹ It appears that in such situations the standard Angelic Grace principles may not apply and that ‘caution’ is required.¹⁸⁰

5.70 The net result is that anti-enforcement injunctions have only been granted in two cases: Ellerman v Read, which has been recently interpreted as turning on the proposition that the foreign judgment was obtained by fraud;¹⁸¹ and Bank St Petersburg v Archangelsky, where the injunction was justified by a specific agreement not to bring the enforcement proceedings, and there was no objection on grounds of delay.¹⁸² But an important aspect of the landscape is that the cases so far have largely concerned attempts to restrain post-judgment enforcement through normal measures of enforcement abroad, on the basis of objections to the legitimacy of the foreign proceedings which existed pre-judgment. In cases where the gravamen of the injunction depends on post-judgment matters, such as the potentially exorbitant nature of the foreign enforcement measures sought, different considerations will apply.¹⁸³

5.71 Where the intended forum of enforcement is England, comity is no reason to withhold the injunction; but the grant of an injunction to restrain enforcement may well be procedurally inappropriate or unnecessary: the appropriate course will often be to resist enforcement in England if and when it is sought.¹⁸⁴

5.72 The question of whether and when anti-enforcement injunctions to restrain enforcement proceedings elsewhere in the Brussels–Lugano zone are precluded by the principle of mutual trust is discussed (subject to the effect of Brexit) in Ch 12, paras 12.69–12.72.(p. 144)

Footnotes:

¹ Using the language of Lord Goff in Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134B–C.

² If a contention could be raised by way of defence in the English action instead of by claim in the foreign action, then the situation can be treated as an alternative forum case: Heilmann v Falkenstein (1917) 32 TLR 383.

³ In OceanConnect UK v Angara Maritime [2011] 1 Lloyds Rep 399 (CA), it was suggested, obiter, that a case would only be a single forum situation if there was no cause of action available to the injunction defendant that would enable him to win in the English courts. That is overstated: the likelihood of victory is not the point. The injunction is a ‘single forum’ injunction if it restrains a form of litigation in the only forum where that particular kind of claim can be pursued.

⁴ Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 95.

⁵ For the case where the foreign proceedings are overlapping but subsequent, and the question is about whether the pre-existing judgment of the English court should be protected, see section C, ‘Injunctions to Prevent Relitigation’.

⁶ For the ‘double claimant’ case, where the claimant abroad is also the claimant in England, see paras 5.14–5.16.

⁷ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894C, 895E–F; Credit Suisse First Boston (Europe) v MLC Bermuda [1999] 1 Lloyds Rep 767, 781; Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [29], [2004] 1 Lloyds Rep 471 (CA) 474–75 (where this was not disputed); Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [63].

⁸ Calendars and Diaries v Nuovo Instituto Italiano D’Arti Grafiche (Wood J, 14 February 1986), where it was submitted by the injunction claimant that the injunction defendant’s submission was decisive, but the injunction was refused; Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [2004] 1 Lloyds Rep 471 (CA) (where it was not contended to be a strong reason in favour of the grant of an injunction that the injunction defendant had submitted). The same result is also implicit in Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) and many other cases. However, see CNA Insurance v Office Depot [2005] Lloyds Rep IR 658 [27], where weight was placed on submission, among other factors.

⁹ Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [30].

¹⁰ Moore v Moore (1896) 12 TLR 221; CNA Insurance v Office Depot [2005] Lloyds Rep IR 658 [27]; Morris v Davies [2011] EWHC 1272. In Singapore, see PT Sandipala Arthaputra v ST Microelectronics Asia Pacific [2015] SGHC 245 [136]–[137].

The inverse reasoning applies: see Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2004] 1 Lloyds Rep 471 (CA) [50], where submission and participation in the foreign proceedings were viewed as a significant factor against an injunction (and see also in the contractual case, Akai v People’s Insurance [1998] 1 Lloyds Rep 90, 105). Similarly, where the foreign proceedings are prior in time this may militate against the grant of an injunction: Jopson v James (1908) 77 LJ (Ch) 824, 829; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [29], although mere accidents of timing are a weak factor: at [28].

¹¹ Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [30]. The facts were not quite enough in The Insurance Company of the State of Pennsylvania v Equitas Insurance [2014] Lloyds Rep IR 195 [29].

¹² Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894B–G, 895E–G, 896F–H; Donohue v Armco [2002] 1 Lloyds Rep 425 (HL) [19] (Lord Bingham, with whom Lords Mackay and Nicholls agreed: at 438); Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50], [54], [56], [63], [110], [117]–[119]; Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 [46]–[48]. The contrary proposition would be to endorse Lord Scarman’s error in Castanho: see further Ch 2, section D, ‘Forum non Conveniens and the Castanho Heresy’ and Ch 4, section J, ‘Forum non Conveniens’.

¹³ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894E–G; Turner v Grovit [2002] 1 WLR 107 (HL) [25] (reasoned in terms of unconscionability). See eg Moore v Moore (1896) 12 TLR 221; Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 111; Tonicstar v American Home Assurance [2005] Lloyds Rep IR 32, 37; CNA Insurance v Office Depot International (UK) [2005] Lloyds Rep IR 658 [27].

¹⁴ The Abidin Daver [1984] AC 398 (HL) 423H–424A (a stay case); Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [29] (upheld on appeal [2004] 1 Lloyds Rep 471 (CA)); Tonicstar v American Home Assurance [2005] Lloyds Rep IR 32, 37; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [36].

¹⁵ Midland Bank v Laker Airways [1986] QB 689 (CA) 702D–E; Turner v Grovit [2000] QB 345 (CA) 357–62, [2002] 1 WLR 107 (HL) [17], [29]; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [69]; Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [18]; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 at [31]; Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 [49]–[50].

¹⁶ Evialis v SIAT [2003] 2 Lloyds Rep 377 [140].

¹⁷ Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [69]; see also The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [111].

¹⁸ Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 110–11; see also Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, although cf The Eras Eil Actions [1995] 1 Lloyds Rep 64, 83, 85. See also Airbus Industrie v Patel [1997] 2 Lloyds Rep 8 (CA) 18 (reversed [1999] 1 AC 119 (HL), but not on this point). However, if the foreign jurisdiction can be viewed as an appropriate forum, then its remedial peculiarities may well be analysed as legitimate advantages rather than grounds for oppression: Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 110; and see AWB (Geneva) v North America Steamships [2007] 1 CLC 749 [31] (not addressed on appeal, [2007] 2 Lloyds Rep 315 (CA) [21], [33]).

¹⁹ Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 112; Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 101.

²⁰ Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [18]. See also Heilmann v Falkenstein (1917) 32 TLR 383.

²¹ General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719, 721–23; Tonicstar v American Home Assurance [2005] 1 Lloyds Rep IR 32, 37.

²² Ardila Investments v ENRC [2015] EWHC 1667 [56]–[57].

²³ The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [111].

²⁴ A/S D/S Svendborg v Wansa [1996] 2 Lloyds Rep 559, 574 (a contractual case, but analysed in terms of oppression); upheld [1997] 2 Lloyds Rep 183 (CA) 189.

²⁵ Petromin v Secnav Marine [1995] 1 Lloyds Rep 603, 613–14.

²⁶ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 899H–902G; Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 112.

²⁷ Any assessment of the quality of justice in the foreign court poses thorny problems of inter-judicial diplomacy. It will usually be presumed that a similar quality of justice is available in the foreign court: Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J), 687; Aggeliki Charis Compania Maritima v Pagnan (The Angelic Grace) [1995] 1 Lloyds Rep 87 (CA) 96, followed OT Africa Line v Magic Sportswear [2005] 2 Lloyds Rep 170 (CA) 184. Further, the courts should be very slow to express views about the relative competence or suitability of a foreign legal system and the English courts to deal with particular disputes: Aratra Potato Co v Egyptian Navigation (The El Amria) [1981] 2 Lloyds Rep 119 (CA) 126–27; Amin Rasheed Shipping v Kuwait Insurance [1984] AC 50 (HL) 67D–G; 72F–73C; The Abidin Daver [1984] AC 398 (HL) 424G–425C (all stay cases); Ascot Commodities v Northern Pacific Shipping (The Irini A) [1999] 1 Lloyds Rep 196, 200. If the quality of justice afforded by a foreign court is to be criticized, this must be done candidly on the basis of clear positive evidence, and the English court should not pass judgment on the foreign legal system unless there is clear evidence of some incontestable procedural problem or deficiency: Aratra Potato v Egyptian Navigation (The El Amria) [1981] 2 Lloyds Rep 119 (CA) 126–27; The Abidin Daver [1984] AC 398 (HL) 411B–E (both stay cases); Bankers Trust v PT Mayora Indah (Colman J, 20 January 1999); see also Clarke J’s evasion of the question in A/S D/S Svendborg v Wansa [1996] 2 Lloyds Rep 559, 574; Middle Eastern Oil v National Bank of Abu Dhabi [2008] 2 CLC 1026 [22]–[27]; Agbaje v Agbaje [2010] 1 AC 628 (HL) [53].

For a recent example of the English court refusing to criticize the justice available in the foreign court without cogent evidence, and refusing to grant an anti-suit injunction, see Dawnus Sierra Leone v Timis Mining Corporation [2016] EWHC 236 [66]. In Mobile Telecommunications Company v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] 2 Lloyds Rep 192 the court was open to such an argument but did not find it necessary to rule on it. For an example of the grant of an anti-suit injunction being driven in large part by the injunction defendant’s assertion that he was able to manipulate the process of the foreign court, see A/S D/S Svendborg v Wansa [1996] 2 Lloyds Rep 559, 566, 574, [1997] 2 Lloyds Rep 183 (CA) 188–89.

In Al-Bassam v Al-Bassam [2004] EWCA Civ 857 [46], the Court of Appeal stated obiter that ‘it is not for the English court to restrain a party in proceedings before it from suing in another jurisdiction on the grounds of its own perception as to the fairness or unfairness of proceedings in that other jurisdiction’. While there is sense to this as an exhortation, treated literally as an absolute principle it would not be correct, and it should not be treated as laying down any such considered doctrine. The Court of Appeal’s approach should be interpreted as turning on the weakness of the factual evidence in the particular case before it and the specific issues addressed.

²⁸ See eg Continental Bank v Aeakos Compania Naviera [1994] 1 Lloyds Rep 505 (CA) 512 (a contractual case); Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 108, 112.

²⁹ For decisions suggesting that features of US litigation like contingency fees, treble and punitive damages, and wide-ranging discovery are not oppressive, see Castanho v Brown & Root [1981] AC 557 (HL) 577; and Neill LJ in Midland Bank v Laker Airways [1986] QB 689 (CA) 714E–G. For decisions suggesting that such matters can contribute to oppression, at least where the USA is clearly an inappropriate forum, see Smith Kline & French Laboratories v Bloch [1983] 1 WLR 730 (CA) 738H, 747H; Midland Bank v Laker Airways [1986] QB 689 (CA) per Lawton and Dillon LJJ at 700, 703; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894D–G, 899F–G; Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 110–11; Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 95; Airbus Industrie v Patel [1997] 2 Lloyds Rep 8 (CA) 16–17 (reversed, but not on this point, [1999] 1 AC 199 (HL)).

³⁰ Liverpool Marine Credit v Hunter (1867) LR 4 Eq 62, 72; upheld (1868) LR 3 Ch App 479 (CA) 484–87; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 899F–H (obiter hints); R v R (Divorce: Hemain Injunction) [2005] 1 FLR 386 [37]–[38], [71]; Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 359 (CA) [55]; Airbus Industrie v Patel [1997] 2 Lloyds Rep 8 (CA) 17–18 (reversed [1999] 1 AC 119 (HL), but not on this point); Jewel Owner v Sagaan Developments Trading (The MD Gemini) [2012] 2 Lloyds Rep 672 [21]; Navig8 v Al-Riyadh Co for Vegetable Oil Industry (The Lucky Lady) [2013] 2 Lloyds Rep 104 [22]; Golden Endurance Shipping v RMA Watanya (The Golden Endurance) [2015] 1 Lloyds Rep 266 [46].

However, cf Re Belfast Shipowners Co [1894] 1 IR 321, 333–34 (injunction granted where the application of the foreign law would produce the ‘wrong’ result; although it may be that the decision should be explained by the need to protect insolvency proceedings).

For examples, see Liverpool Marine Credit v Hunter (1867) LR 4 Eq 62, 69, 72, (1868) LR 3 Ch App 479 (CA) 484 (injunction refused, even though the foreign law in question disregarded the comity of nations); Calendars and Diaries v Nuovo Instituto Italiano D’Arti Grafiche (Wood J, 14 February 1986) (injunction refused, although the Italian court would apply Italian law while the English court would apply English law, and this difference would determine the case); Through Transport Mutual Insurance Association (Eurasia) v New India Assurance [2005] 1 Lloyds Rep 67 (CA) 89; Trafigura Beheer v Kookmin Bank [2005] EWHC 2350 [50]–[52]; Jewel Owner v Sagaan Developments Trading (The MD Gemini) [2012] 2 Lloyds Rep 672 [21]. The concept of an ‘appropriate’ law is not yet developed, but it is less likely to be vexatious or oppressive to seek to rely on foreign law where the foreign law implements a widely accepted international convention, even if English law implements a different convention: Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 491, or if the foreign court might give that convention a different but legitimate interpretation: Deaville v Aeroflot Russian International Airlines [1997] 2 Lloyds Rep 67, 69–70, 75.

³¹ Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [18]; Trafigura Beheer v Kookmin Bank (No 3) [2007] 1 Lloyds Rep 669 [51]–[55]. This approach is in tension with the Court of Appeal’s decision in Petter v EMC [2016] ILPr 3 (CA) (criticized elsewhere in this work at Ch 4, paras 4.41–4.46).

It has been suggested that it would be vexatious to advance claims abroad which purport to be claims governed by and under English law, where in truth no such claim exists under English law: Pathe Screen Entertainment v Handmade Films (Distributors) (Hobhouse J, 11 July 1989).

³² Navig8 v Al-Riyadh Co for Vegetable Oil Industry (The Lucky Lady) [2013] 2 Lloyds Rep 104 [22].

³³ Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [79]–[83] (decision upheld on appeal [2004] 1 Lloyds Rep 471 (CA)); Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50]–[65]; The Insurance Company of the State of Pennsylvania v Equitas Insurance [2014] Lloyds Rep IR 195 [29].

³⁴ Donohue v Armco [1999] 2 Lloyds Rep 649, 663, reversed [2000] 1 Lloyds Rep 579 (CA), but decision affirmed [2002] 1 Lloyds Rep 425 (HL); Bloch v Bloch [2003] 1 FLR 1 [82]; Re Tadros [2014] EWHC 2860 [74]–[78]. See also Bitmac v Creosote Producers Association, The Times (CA, 12 June 1986).

In AWB (Geneva) v North America Steamships [2007] 1 CLC 749 [31] (not addressed on appeal, [2007] 2 Lloyds Rep 315 (CA) [21], [33]), Field J held that an application by an insolvent Canadian company to a Canadian insolvency court to override the provisions of an English law contract was not vexatious or oppressive. It was ‘predictable’ that any insolvency proceedings relating to a Canadian company would be determined in Canada and it was a ‘common feature of insolvency regimes that contractual rights can be overridden’.

³⁵ Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [71] (decision upheld on appeal [2004] 1 Lloyds Rep 471 (CA)).

³⁶ Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 491; Donohue v Armco [1999] 2 Lloyds Rep 649, 663, [2002] 1 Lloyds Rep 425 (HL) [27], [29], [33]–[36], [46]–[47], [72]–[75].

³⁷ Ascot Commodities v Northern Pacific Shipping (The Irini A) [1999] 1 Lloyds Rep 196, 200.

³⁸ Dornoch v The Mauritius Union Assurance [2005] EWHC 1887 [129].

³⁹ Amoco (UK) Exploration v British American Offshore [1999] 2 Lloyds Rep 772, 780. As to whether this is a general doctrine, see section F, ‘Stay Applications in the Foreign Court’.

⁴⁰ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 899F–H; Metall und Rohstoff v ACLI Metals (London) [1984] 1 Lloyds Rep 598 (CA) 607; Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 95; Kemsley v Barclays Bank [2013] EWHC 1274 [41]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [40].

⁴¹ To fall within this category the claims must be genuinely duplicative. For examples where they were not, see Kyrgyz Mobil Tel Ltd v Fellowes International Holdings Ltd (No 3) [2005] EWHC 1314 and Citicorp International Ltd v Shiv-Vani Oil & Gas Exploration Services [2014] EWHC 245.

⁴² Merrill Lynch, Pierce Fenner & Smith v Raffa [2001] ILPr 31 [22]; Carnoustie Universal v International Transport Workers’ Federation [2002] 2 All ER (Comm) 657 [138]; Beirut-Racy v Hawila [2003] EWHC 1611 [54]–[55]. See also Re Bank of Credit and Commerce International (No 9) [1994] 3 All ER 764 (CA) 796–99 (in the slightly different context of whether undertakings to limit duplicative foreign litigation should be required as conditions of a Mareva injunction).

The best view is that there is no presumption that a double claim abroad and in England is vexatious: McHenry v Lewis (1882) 22 Ch D 397 (CA); Bank of Tokyo v Karoon [1987] AC 45 (CA) (Note), 59, where it was stated obiter that ‘it is not prima facie vexatious for the same plaintiff to commence two actions relating to the same subject matter, one in England and one abroad’; Carnoustie Universal v International Transport Workers’ Federation [2002] 2 All ER (Comm) 657 [128]. The more rigid comments made in Australian Commercial Research and Development v ANZ McCaughan Merchant Bank [1989] 3 All ER 65, 69–70 were not followed in Beirut-Racy v Hawila [2003] EWHC 1611 [51] (upheld on appeal, [2004] EWCA Civ 209).

⁴³ See Kyrgyz Mobil Tel v Fellowes International Holdings (No 3) [2005] EWHC 1314 (Comm) [24].

⁴⁴ See, by analogy, Ch 7, section I, ‘Foreign Proceedings to Obtain Security’.

⁴⁵ Australian Commercial Research and Development v ANZ McCaughan Merchant Bank [1989] 3 All ER 65, 69–70; Beirut-Racy v Hawila [2003] EWHC 1611 [54]–[68], upheld on appeal, [2004] EWCA Civ 209. For recent examples where there was no abuse on the facts, see Novoship (UK) v Mikhayluk [2012] EWHC 1352 (Comm); Akyuz v Akyuz [2017] EWHC 2726 (Ch).

In The ‘Hartlepool’ (1950) 84 Ll L Rep 145 and The Soya Margareta [1961] 1 WLR 709, 716–17 the defendant applied only for a stay, and the court did not put the double claimant to his election, but instead simply granted injunctions to restrain the foreign proceedings (in The Hartlepool, rather unusually, the injunction was granted at the double claimant’s request). The modern approach would probably be to put the claimant to his election, and require undertakings. In Advanced Portfolio Technologies v Ainsworth [1996] FSR 217, Harman J refused to allow the double claimant to stay his English proceedings and as a result granted an injunction to restrain the New York proceedings; but it seems it would have been different if the claimant had been willing to discontinue his English proceedings.

⁴⁶ See eg Beirut-Racy v Hawila [2003] EWHC 1611 [54]–[68], upheld on appeal, [2004] EWCA Civ 209.

⁴⁷ In Australian Commercial Research and Development v ANZ McCaughan Merchant Bank [1989] 3 All ER 65, 69–70 it was held that the only option open to the claimant in England was a discontinuance, not a stay. Similarly, in Advanced Portfolio Technologies v Ainsworth [1996] FSR 217 Harman J refused to allow the claimant to stay his own proceedings. However, the modern cases appear to take a more flexible approach: a stay was sought and allowed in Merrill Lynch, Pierce Fenner & Smith v Raffa [2001] ILPr 31 [19] and Beirut-Racy v Hawila [2003] EWHC 1611 [46] (upheld on appeal, [2004] EWCA Civ 209).

⁴⁸ Australian Commercial Research and Development v ANZ McCaughan Merchant Bank [1989] 3 All ER 65, 69–70; Merrill Lynch, Pierce Fenner & Smith v Raffa [2001] ILPr 31 [24]. In General Motors v Royal & Sun Alliance Insurance [2007] 2 CLC 507, the duplicate claimant was restrained from pursuing his US proceedings because a consent order to which he had agreed in the English proceedings was construed as amounting to an agreement to the exclusive jurisdiction of the English courts.

⁴⁹ Ardila Investments v ENRC [2015] EWHC 1667; and see also Advanced Portfolio Technologies v Ainsworth [1996] FSR 217; General Motors v Royal & Sun Alliance Insurance [2007] 2 CLC 507; Dana Gas v Dana Gas Sukuk [2018] EWHC 277 (Comm) [40]–[41]. In Castanho v Brown & Root [1981] AC 557 (HL) 571–77, it was concluded that, on the facts of that case, the double claimant should be entitled to discontinue his English proceedings. The prejudice caused could be dealt with in costs.

⁵⁰ Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 54, 61; [2005] 2 Lloyds Rep 359 (CA) [50], [66].

⁵¹ See eg ED&F Man (Sugar) v Yani Haryanto (No 2) [1991] 1 Lloyds Rep 429 (CA) 437–38 (Neill LJ); Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 54, 61; [2005] 2 Lloyds Rep 359 (CA) 369, 372. Similarly, in Zeeland Navigation Co v Banque Worms, The Times (26 December 1995), Waller J thought it was right to exercise considerable caution before granting an injunction based on res judicata alone.

⁵² Seismic Shipping v Total E&P UK (The Western Regent) [2005] 2 Lloyds Rep 54, 61, [2005] 2 Lloyds Rep 559 (CA) 369–70. The English court’s self-restraint may depend, at least in part, on it being likely that the foreign court will also display sufficient respect for comity when considering the effect of the English judgment: The Western Regent at [49]–[50].

⁵³ Foreign proceedings which relitigated matters decided in England, but also were additionally vexatious for other specific reasons, were restrained in Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 50G, 52B–H (per Bingham J); Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); National Westminster Bank v Utrecht-America Finance [2001] CLC 442 [54] (where the relitigation would be in breach of contract); on appeal [2001] 3 All ER 733 (CA), the breach of contract, not the relitigation, was viewed as the determining factor; Law Debenture Trust v Concord Trust [2007] EWHC 2255 [47], where the foreign proceedings were not only relitigation but were also hopeless (upheld with somewhat different reasoning, Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [85]).

⁵⁴ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [83]–[96], [100]; followed in Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [85]; and see to similar effect in principle Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [55]–[58], in part upholding Emmott v Michael Wilson [2017] 1 Lloyds Rep 21 [57]–[59], [62]. See also Noble Assurance v Gerling-Konzern General Insurance [2008] Lloyds Rep IR 1 [85]; Berliner Bank v C Czarnikow Sugar (The Rama) [1996] 2 Lloyds Rep 281, 298. For a recent example see Ahmed v Mustafa [2015] 1 FLR 139 (CA) [21].

⁵⁵ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [86]–[94], [100].

⁵⁶ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [96].

⁵⁷ By analogy to the principle in Henderson v Henderson (1843) 3 Hare 100, 67 ER 313. See Zeeland Navigation Co v Banque Worms, The Times (26 December 1995); Glencore International v Metro Trading International [2002] CLC 1090 (Moore-Bick J) [33]–[43], upheld on appeal (CA) [67]–[68] (although this case can be viewed as an example of concurrent, not consecutive litigation); Noble Assurance v Gerling-Konzern General Insurance [2008] Lloyds Rep IR 1 [95]; Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [85]; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [42]–[43], [63] (injunction rejected on the facts). In Royal Bank of Scotland v Highland Financial Partners [2012] EWHC 1278, it was held that RBS had a prima facie strong case for an injunction on this basis, but the injunction was refused for lack of clean hands: [172], [194].

⁵⁸ Michael Wilson v Emmott [2018] 1 Lloyds Rep 299 (CA) [55]–[58], in part upholding Emmott v Michael Wilson [2017] 1 Lloyds Rep 21 [57]–[59], [62]; see also Noble Assurance v Gerling-Konzern General Insurance [2008] Lloyds Rep IR 1 [95]; Nomihold Securities v Mobile Telesystems Finance [2012] 1 Lloyds Rep 442 [42]–[43], [63] (injunction rejected on the facts); Crescendo Maritime v Bank of Communications Company [2016] 1 Lloyds Rep 414 [50]–[51]; Mobile Telecommunications v Prince Hussam bin Saud bin Abdulaziz bin Saud [2018] 2 Lloyds Rep 192.

⁵⁹ See Ch 7, paras 7.66–7.67.

⁶⁰ British Airways Board v Laker Airways [1985] AC 58 (HL) 80B–D, 86F–G; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134C; Oceanconnect UK v Angara Maritime Ltd (The Fesco Angara) [2011] 1 Lloyds Rep 399 (CA) [43].

⁶¹ British Airways Board v Laker Airways [1985] AC 58 (HL) 80B–D, 86F–G; Midland Bank v Laker Airways [1986] QB 689 (CA) 700B, 701B, 712B. See also Bitmac v Creosote Producers Association (CA, 12 June 1986).

⁶² See eg Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560 [18]. The fact that foreign statutory law may be the applicable law of the claim is irrelevant, as the English court is able to apply foreign statute law, inter alia through the cause of action for breach of a statutory duty: Crystal Decisions (UK) v Vedatech [2004] EWHC 1872. For discussion of the difficulties in identifying the borderline between single and alternative forum cases, see A Bell, Forum Shopping and Venue in Transnational Litigation (OUP 2003) paras 4.97–4.99 (hereafter ‘Bell’).

⁶³ In Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 896E, Lord Goff treated as an alternative forum case any situation where ‘a remedy for a particular wrong is available both in the English (or here the Brunei) court and the foreign court’. See Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 95, where (a) it was suggested obiter that the unavailability of claims for treble damages under the US Racketeer Influenced and Corrupt Organizations (RICO) statute would not have prevented the case from being an alternative forum situation, as ‘RICO provides a remedy rather than a cause of action’; (b) it was held that English statutory causes of action for securities fraud were sufficiently close comparators to US statutory causes of action for securities fraud.

⁶⁴ This passage in the first edition was approved in Oceanconnect UK v Angara Maritime (The Fesco Angara) [2011] 1 Lloyds Rep 399 (CA) [43].

⁶⁵ See Airbus Industrie v Patel [1999] 1 AC 119 (HL) 139F–G; Ch 4, sections L, ‘Comity’ and M, ‘Natural Forum’. It may be that in a single forum case the more relevant question in relation to comity is not whether England is the natural forum for the trial of the claim but rather whether England is the natural forum to decide whether the claim is vexatious or oppressive: Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610.

⁶⁶ See eg Bitmac v Creosote Producers Association (CA, 12 June 1986).

⁶⁷ This passage in the first edition was approved in Oceanconnect UK v Angara Maritime (The Fesco Angara) [2011] 1 Lloyds Rep 399 (CA) [43]. See also Midland Bank v Laker Airways [1986] QB 689 (CA) 712B. However, see contra A Briggs, ‘Anti-Suit Injunctions in a Complex World’ in F Rose (ed), Lex Mercatoria (Informa 2000) 219, 240–41. It has been suggested that the necessary caution will make a true single forum injunction ‘exceptional’: Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [30]. But the authority there relied on, Airbus Industrie v Patel [1999] 1 AC 119 (HL) at 139G, did not say this.

It is possible that the right of access to the court inherent in Article 6 of the European Convention on Human Rights (ECHR) should accentuate the court’s hesitation before granting single forum anti-suit injunctions: see Ch 1, para 1.84.

⁶⁸ Turner v Grovit [2002] 1 WLR 107 (HL) 119D–H; Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (CA) [42], per Rix LJ (both obiter on this point).

⁶⁹ See further Ch 4, para 4.81, n 200. Indeed, in Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [30], Rix LJ later himself recognized the legitimacy of single forum injunctions.

⁷⁰ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134B–C, 137C–138F, 139G. See eg Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606.

⁷¹ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 139F–G: ‘these single forum cases demonstrate that any limiting principle requiring respect for comity cannot be simply expressed by reference to the question whether the English court may be the natural forum for the dispute’.

⁷² Contractual anti-suit injunctions can, in their practical effect, be single forum injunctions, but their logic is different to injunctions based on vexation and oppression, and so they are not analysed here.

⁷³ Smith Kline & French Laboratories v Bloch (No 2) (Skinner J, 13 June 1984); Midland Bank v Laker Airways [1986] QB 689, 696B–C, 700D–G).

⁷⁴ Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [31], [39], where Rix LJ warned against ‘egoistic paternalism’; Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 (Comm) [50].

⁷⁵ See eg Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [120]; Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 [50].

⁷⁶ A finding of hopelessness was made in Law Debenture Trust Corp v Concord Trust [2007] EWHC 2255 [47]; Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [114]–[122]; and The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [111].

⁷⁷ Pennell v Roy (1853) 3 De GM & G 126, 43 ER 50, 53–56; British Airways Board v Laker Airways [1984] QB 142, 166–67 (Parker J), reversed on appeal [1984] QB 142 (CA); decision restored in House of Lords [1985] AC 58 (HL) 86D–E; Midland Bank v Laker Airways [1986] QB 689 (CA) 700D–E, 703E–H; Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [31] (an alternative forum case); Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 (Comm) [50]–[56]. For examples of the failure of a claim for an injunction on this basis, see Smith Kline & French Laboratories v Bloch (No 3) [1985] ECC 85, [1985] ECC 230 (CA); Smith Kline & French Laboratories v Bloch (No 2) [1985] ECC 75; Trafigura Beheer v Kookmin Bank [2005] EWHC 2350.

⁷⁸ Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [121].

⁷⁹ Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 (Comm) [58]; see also Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [31]–[39]; Midland Bank v Laker Airways [1986] QB 689 (CA) 700D–E.

⁸⁰ Elektrim v Vivendi Holdings 1 [2009] 1 Lloyds Rep 59 (CA) [121]. In Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 (Comm) [55], Males J appears to have regarded the decision in Elektrim as relying on hopelessness as only one factor among others. In The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [111] it was sufficient that the foreign proceedings, which overlapped with English proceedings, were self-evidently hopeless and served no legitimate purpose.

⁸¹ Airbus Industrie v Patel [1999] 1 AC 119 (HL) 138G–H, 139; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50(6)], [56]. See also Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); Barclays Bank v Homan [1993] BCLC 680, 687: ‘the fact that the proceedings would, if brought in England, be struck out as vexatious or oppressive in the domestic sense, will not ordinarily in itself justify the grant of an injunction to restrain their prosecution in a foreign court’; Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610, where it was suggested that it needed to be shown that the English court was the appropriate court to decide questions of forum or to decide whether the foreign proceedings were vexatious.

⁸² Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 [50]–[56]. This is also consistent with the analysis and result in Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610.

⁸³ See the warnings against ‘egoistic paternalism’ in such cases in Star Reefers Pool v JFC Group Ltd [2012] 1 Lloyds Rep 376 (CA) [31]–[39].

⁸⁴ Vitol Bahrain v Nasdec Trading [2013] EWHC 3359 [50]–[56].

⁸⁵ The Owners of the Ship ‘Al Khattiya’ v The Owners and/or Demise Charterers of the Ship ‘Jag Laadki’ [2018] EWHC 389 [111].

⁸⁶ Midland Bank v Laker Airways [1986] QB 689 (CA) 700B, 705B–C, 707E–F, 714H–715G. It should be noted, however, that as with all anti-suit injunctions, everything depends on the facts. It was an important additional factor in favour of the grant of an injunction that there was little or no evidential basis for the claims brought against the bank: 710B, 713E–F, although cf Lawton LJ at 700G and Neill LJ at 713B–C.

In relation to ‘unconscionability’, the Court of Appeal was applying the test of unconscionable conduct rather than vexation and oppression, because Midland Bank v Laker was decided between the decisions in British Airways Board v Laker Airways [1985] AC 58 (HL), which first advanced the concept of unconscionable conduct, and Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC), which reintroduced the historical, and now modern, test of vexatious or oppressive behaviour: see Ch 2, sections E, ‘Unconscionability and the Return to Equity’ and F, ‘Aérospatiale and the Modern Law’. In Airbus Industrie v Patel [1999] 1 AC 119 (HL) 134D, Lord Goff said in passing that ‘in single forum cases, it is said that an injunction may be granted to restrain the pursuit of proceedings overseas which is unconscionable’. It is suggested, however, that Lord Goff should not be treated as ratifying the use of ‘unconscionable’ as the sole test in single forum cases. Vexation or oppression is an equally appropriate juridical framework, and perhaps better. In Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 610, Thomas J analysed a single forum case in terms of vexation, not unconscionability.

⁸⁷ Airbus Industrie v Patel [1999] 1 AC 199 (HL) 138D. The English court’s ability to criticize a foreign court’s exercise of jurisdiction as exorbitant may be limited if it would itself exercise jurisdiction over a foreigner in a parallel situation: Barclays Bank v Homan [1993] BCLC 680, 689.

⁸⁸ Airbus Industrie v Patel [1999] 1 AC 199 (HL) 138B–H.

⁸⁹ See, by analogy, Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [28].

⁹⁰ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [56].

⁹¹ British Airways Board v Laker Airways [1985] AC 58 (HL) 84E–G, 96A–B; Midland Bank v Laker Airways [1986] QB 689 (CA) 702B–C, 704F–705A; Bitmac v Creosote Producers Association (CA, 12 June 1986). In Oceanconnect UK v Angara Maritime (The Fesco Angara) [2011] 1 Lloyds Rep 399 (CA), an anti-suit injunction to restrain proceedings in the USA for a maritime lien was rejected. The availability of a US law maritime lien was a matter that should be determined by the US courts: [51], [56].

⁹² Barclays Bank v Homan [1993] BCLC 680: ‘The foreign court is entitled, without thereby occasioning a breach of international law or manifest injustice, to give effect to the policies of its own jurisdiction’ (at 690). Arguments that a claim for triple damages based on the US RICO statute was ‘per se oppressive’ were rejected in The Eras Eil Actions [1995] 1 Lloyds Rep 64, 85. In Bitmac v Creosote Producers Association (CA, 12 June 1986), the US imposition of no-fault liability without proof of specific causation by the defendant was not viewed as sufficient to justify an injunction, where the injunction claimant had placed his business within the sphere of interest of US law. In Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 100, the deputy judge observed that ‘in a single forum case it would be wrong for this court to criticize American procedures’. See also Star Reefers Pool v JFC Group [2012] 1 Lloyds Rep 376 (CA) [34], [36] and Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [38]–[39].

⁹³ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892H–893A; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [83]–[88]; Ch 4, section H, ‘Interference with the Processes, Jurisdiction, or Judgments of the English Court’.

⁹⁴ Re North Carolina Estate (1889) 5 TLR 328; discussed in Barclays Bank v Homan [1993] BCLC 680, 686 (Hoffmann J); Re Distin (1871) 24 LT 197.

⁹⁵ In Barclays Bank v Homan [1993] BCLC 680, 690, Hoffmann J viewed US insolvency proceedings as sufficiently different to English insolvency that an injunction to restrain them was in effect a single forum situation. Similarly, in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) the claims in question could only have been brought in the foreign court.

⁹⁶ See Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992) and Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [24], [27], [33]. The cases on insolvency are discussed in detail in section E, ‘Insolvency and Justice between Creditors’.

⁹⁷ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42].

⁹⁸ See Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [40]: ‘inimical to the proper winding up process’.

⁹⁹ Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606, 608–10.

¹⁰⁰ See eg General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep 719; Tonicstar v American Home Assurance [2005] Lloyds Rep IR 32.

¹⁰¹ In Laker Airways v Sabena Belgian World Airlines 731 F 2nd 909 (DC Cir 1984) [20]–[21], Judge Wilkey viewed anti-anti-suit injunctions as ‘necessary to conserve the court’s ability to reach a judgment’ in certain circumstances.

¹⁰² See Graham v Maxwell (1849) 1 Mac & G 71, 41 ER 1189; Carron Iron v Maclaren (1855) 5 HLC 416; Re South Eastern Portugal Railway (1869) 17 WR 982; Re London and Colonial, ex parte Clark (1869) LR 7 Eq 550; Re Distin (1871) 24 LT 197; Re Oriental Inland Steam (1874) LR 9 Ch App 557 (CA); Re International Pulp and Paper (1876) 3 Ch D 594 (based on Companies Act 1962, s 85); Re the North Carolina Estate (1889) 5 TLR 328; Re Central Sugar Factories of Brazil, Flack’s Case [1894] 1 Ch 369; Re Belfast Shipowners Co [1894] 1 IR 321; Re Vocalion (Foreign) Ltd [1932] 2 Ch 196. Similar issues also arose in probate proceedings, where questions of the priority of creditors have had to be regulated: see Maclaren v Stainton (1852) 16 Beav 279, 51 ER 786; Maclaren v Stainton (1855) 26 LJ Ch (NS) 332.

¹⁰³ Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [24], [27], [33]; Morris v Davies [2011] EWHC 1272 (Ch) [38]–[39]; Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [38]–[41]; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [40], [42].

¹⁰⁴ Barclays Bank v Homan [1993] BCLC 680, 691.

¹⁰⁵ Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 63B–G, although it can be noted that no such doubt was expressed in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892G–893A; 896D. In Hughes v Hannover [1997] 1 BCLC 497 (CA) 519–20, it was held that the historical cases concerning the restraint of creditors acting inconsistently with the collective insolvency proceedings should now be seen merely as illustrations of the applicability of the Aérospatiale principles, and that the question was always what the ‘ends of justice’ would require. See also Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [29], where the older authorities were not treated as a good guide.

¹⁰⁶ See eg In re Distin (1871) 24 LT 197.

¹⁰⁷ Such as eg s 304 of the United States Bankruptcy Code: see Mitchell v Carter, Re Buckingham International [1997] 1 BCLC 673, 676.

¹⁰⁸ Barclays Bank v Homan [1993] BCLC 680 (CA) 690–91 (Hoffmann J), 700 (Glidewell LJ); Mitchell v Carter, Re Buckingham International [1997] 1 BCLC 673 (CA) 676; followed in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [42]; AWB Geneva v North America Steamships [2007] 2 Lloyds Rep 315 (CA); and Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [29], [41]. The even more restrictive approach in Re Vocalion (Foreign) [1932] 2 Ch 196, 211 was not followed in Krys at [38]. See also the restraint shown in Team Y&R Holdings Hong Kong v Ghossoub [2017] EWHC 2401 (Comm) [113].

¹⁰⁹ See Barclays Bank v Homan [1993] BCLC 680, 685–86 (Hoffmann J), 700–01 (Glidewell LJ); AWB Geneva v North America Steamships [2007] 1 CLC 749 [31] (not challenged on appeal [2007] 2 Lloyds Rep 315 (CA)); Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [38]–[47]. Maugham J also pointed out in Re Vocalion (Foreign) Ltd [1932] 2 Ch 196, 205 that often only some of the creditors abroad would be amenable to the jurisdiction of the English court, and thus the grant of an injunction could well lead to an unjustifiable discrimination between creditors abroad.

¹¹⁰ Barclays Bank v Homan [1993] BCLC 680, 685–86, 689–90 (Hoffmann J).

¹¹¹ Barclays Bank v Homan [1993] BCLC 680 (CA) 700–02; Leggatt LJ expressed this conclusion in terms of unconscionability: at 703.

¹¹² Re Newton, The Times (24 January 1956) and Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [41], cited with approval in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [40].

¹¹³ See generally Ch 4, sections L, ‘Comity’ and M, ‘Natural Forum’.

¹¹⁴ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [33]–[34], [42].

¹¹⁵ Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [45]–[49].

¹¹⁶ Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [27]–[28], [33]. See also Re the North Carolina Estate (1889) 5 TLR 328; Re Vocalion (Foreign) [1932] 2 Ch 196, 210.

¹¹⁷ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [24].

¹¹⁸ Bloom v Harms Offshore AHT ‘Taurus’ [2010] Ch 187 (CA) [27]–[28], [33]. See also the comments of Lord Goff in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892–93.

¹¹⁹ Barclays Bank v Homan [1993] BCLC 680, 688.

¹²⁰ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) at [42].

¹²¹ Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC), at [38]–[39].

¹²² Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC), at [38], [40]–[43].

¹²³ Both Barclays Bank v Homan [1993] BCLC 680 (Hoffmann J and CA) and Mitchell v Carter, Re Buckingham International [1997] 1 BCLC 673 (CA) 676, were expressly cited with approval in Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC), at [42].

¹²⁴ Cross-Border Insolvency Regulations 2006.

¹²⁵ Commissioner of Inland Revenue v Compudigm International Ltd [2010] NZHC 1832 [29]. See further the discussion in Ch 20, paras 20.23–20.25.

¹²⁶ The relevance of the foreign court being able to apply principles analogous to forum non conveniens was discussed in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 894E–G.

¹²⁷ Bouygues Offshore v Caspian Shipping (No 2) [1997] 2 Lloyds Rep 485, 491 (although oddly Morison J appears to have thought that the contrary had been decided by the CA in Barclays Bank v Homan, which is not right); Ascot Commodities v Northern Pacific Shipping (The Irini A) [1999] 1 Lloyds Rep 196, 200; Amoco (UK) Exploration v British American Offshore [1999] 2 Lloyds Rep 772, 780. In Amchem Products v British Colombia (Workers’ Compensation Board) [1993] 1 SCR 897 (Can SC) 931, the Canadian Supreme Court suggested that ‘it is preferable that the decision of the foreign court not be pre-empted until a proceeding has been launched in that court and the applicant for an injunction in the domestic court has sought from the foreign court a stay or termination of the foreign proceedings and failed’. (Although parts of Amchem were referred to with tentative approval in Airbus Industrie v Patel [2009] 1 AC 119 (HL), this passage was not amongst those mentioned.)

This analysis is also consistent, in reverse, with General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers Ltd [2003] Lloyds Rep IR 719 [16], where the court concluded that the New York anti-suit injunction proceedings were vexatious because the ‘logical and normal course’ would have been to apply to the English court to stay the English proceedings on grounds of forum non conveniens.

¹²⁸ Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [29] (decision upheld on appeal [2004] 1 Lloyds Rep 471 (CA)); see also Barclays Bank v Homan [1993] BCLC 680 (CA) 691–92, 700 (‘the normal assumption is that the foreign judge is the best person to decide whether an action in his court should proceed’). In Kemsley v Barclays Bank [2013] EWHC 1274 (Ch) [45]–[46], the appropriate course was for the US court first to decide whether Mr Kemsley’s centre of main interest was in the USA and then to rule on a stay of the proceedings before it.

This approach was supported by the International Law Association:

In principle, the court first seised should determine the issues (including the issue whether it has jurisdiction) except (a) when the parties have conferred exclusive jurisdiction on the courts of another country, or (b) when the first seised court is seised in proceedings which are designed (eg by an action for a negative declaration) to frustrate proceedings in a second forum which is clearly more appropriate [International Law Association, Bruges Session (September 2003) Second Commission, Resolution: ‘The Principles for Determining When the Use of the Doctrine of Forum non Conveniens and Anti-Suit Injunctions is Appropriate’ (Rapporteurs L Collins, G Droz), section 4].

See also A Lowenfeld, ‘Forum non conveniens and Anti-Suit Injunctions: An Update’ (1998) 92 AJIL 41, 41.

¹²⁹ Ch 7, para 7.17; Ch 8, paras 8.45–8.48.

¹³⁰ See eg Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) (although in that case the doctrine of forum non conveniens was not available in the foreign court); Turner v Grovit [2002] 1 WLR 107 (HL) (although the decision may be explained by the findings that the Spanish proceedings had been commenced in bad faith in order to harass the defendant in Spain); Shell International Petroleum v Coral Oil (No 2) [1999] 2 Lloyds Rep 606; Al-Bassam v Al-Bassam [2004] EWCA Civ 857; Cadre v Astra Asigurari [2006] 1 Lloyds Rep 560; Morris v Davies [2011] EWHC 1272; Re Tadros [2014] EWHC 2860; Ardila Investments v ENRC [2015] EWHC 1667.

¹³¹ Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 892–93; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [50].

¹³² Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (Moore-Bick J, [42]; a challenge to this conclusion was not pressed on appeal, and the CA appeared to sympathize with Moore-Bick J’s approach: (CA) [71]. See also Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992), where Hoffmann J defined the criteria for the grant of an injunction as being that ‘the court must be satisfied that the foreign proceedings are vexatious or oppressive in a sense which is likely to result in injustice unless the court grants an injunction rather than leaving the matter to a foreign court’, and Barclays Bank v Homan [1993] BCLC 680 (CA) 699. In CSR v Cigna Insurance Australia (1996–97) 189 CLR 345 (HC Aus) 396–97, the High Court of Australia did not accept the ‘proposed rule’ that a stay should first be applied for, which had been advanced in Amchem Products v British Colombia (Workers’ Compensation Board) [1993] 1 SCR 897 (Can SC) 931, and suggested that:

there may be cases—for example, cases based on contentious or novel claims of unconscionable conduct—in which it is appropriate or desirable that an anti-suit injunction not be granted until an application has been made for a stay or dismissal of the foreign proceedings. However, that course is neither appropriate nor desirable if the application can be determined without that step being taken.

A Briggs, ‘Anti-Suit Injunctions in a Complex World’ in F Rose (ed), Lex Mercatoria (2000) 219, 226–27, argues it is wrong to require a prior stay application to the foreign court.

¹³³ Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992); this may also be part of the explanation of the decision in Glencore International v Metro Trading International (No 3) [2002] CLC 1090 (Moore-Bick J) [42].

¹³⁴ In TC Hartley, ‘Comity and the Use of Anti-suit Injunctions in International Litigation’ (1987) 35 AJCL 487, 509, 510, Hartley suggests that although in general an injunction applicant should be expected first to seek a stay, it is a condition that ‘the relevant law and policy of the foreign court must be substantially similar to that of the forum’.

¹³⁵ See Midland Bank v Laker Airways [1986] QB 689 (CA); Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC); TC Hartley, ‘Comity and the Use of Anti-Suit Injunctions in International Litigation’ (1987) 35 AJCL 487, 509–10.

¹³⁶ See again TC Hartley, ‘Comity and the Use of Anti-suit Injunctions in International Litigation’ (1987) 35 AJCL 487, 510.

¹³⁷ CSR v Cigna Insurance Australia (1996–97) 189 CLR 345, 398 (HC Aus). See Midland Bank v Laker Airways [1986] QB 689 (CA), where an application for a stay to the US court had failed, but the ground of the injunction was that the exercise of US anti-trust jurisdiction was exorbitant. There is no reason to suppose that the court would have been any more likely to decline an injunction had it been applied for before the hearing of the US stay application.

¹³⁸ Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2004] 1 Lloyds Rep 471 (CA) [47]–[48]; Deutsche Bank v Highland Crusader Offshore Partners [2010] 1 WLR 1023 (CA) [119] and (where this was not shown on the facts) Dawnus Sierra Leone Limited v Timis Mining Corporation Limited [2016] EWHC 236 [66].

See Amchem Products v British Colombia (Workers’ Compensation Board) [1993] 1 SCR 897 (Can SC) 931-934, referred to with appreciation if not formal approval in Airbus Industrie v Patel [1999] 1 AC 119 (HL) 139; followed in relation to contractual injunctions in Akai v People’s [1998] 1 Lloyds Rep 90, 105 and treated as a relevant principle in relation to non-contractual injunctions in National Westminster Bank v Utrecht-America Finance [2001] 3 All ER 733 (CA) [29] and Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank [2003] EWHC 2913 [47].

Conversely, where a foreign first instance court has declined jurisdiction over competing foreign proceedings, it can be oppressive for the injunction defendant to appeal that decision in certain limited circumstances: Simon Engineering v Butte Mining (No 1) [1996] 1 Lloyds Rep 104, 108, 112; Simon Engineering v Butte Mining (No 2) [1996] 1 Lloyds Rep 91, 98–99, 101.

¹³⁹ Midland Bank v Laker Airways [1986] QB 689 (CA) 704E, Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] AC 871 (PC) 886G–887B, 894E–G; Stichting Shell Pensionenfonds v Krys [2015] AC 616 (PC) [42]; and see also Deutsche Bank v Highland Crusader Offshore Partners [2010] 1 WLR 1023 (CA) [54].

¹⁴⁰ See Bankers Trust International v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252, 254D–E.

¹⁴¹ South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL) 41G–44A (held that a direct application in the USA to obtain disclosure, outside the letter of request procedure, was not an interference with the process of the English court, and injunction refused); Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992) (not an interference with an English action to bring foreign proceedings in order to cross-examine a witness in an English action, who otherwise would not have given oral evidence but only a written statement in the English proceedings; this case is perhaps an example of uncharacteristic restraint); Bankers Trust International v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252, 254; Nokia v Interdigital Technology [2004] EWHC 2920 [25]–[26]; Royal Bank of Scotland v Hicks [2011] EWHC 287 [94]–[97].

¹⁴² Nokia v Interdigital Technology [2004] EWHC 2920 [32]–[35]. However, if under the foreign procedures the request will be granted automatically, without consideration of relevance or proportionality, then the English court may have reasons for intervention, if it doubts the relevance of the material sought: at [34].

¹⁴³ Armstrong v Armstrong [1892] P 98; Omega Group Holdings v Kozeny [2002] CLC 132; Royal Bank of Scotland v Hicks [2011] EWHC 287 [94]–[97].

¹⁴⁴ Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267.

¹⁴⁵ Bankers Trust International v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252, 255F–256A (injunction granted to restrain applications for further discovery in the USA after the conclusion of the English trial, where the English court had previously rejected applications for disclosure of comparable documents).

¹⁴⁶ Bankers Trust International v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252, 255E. See also Allstate Life Insurance v Australian New Zealand Banking Group (No 4) (1996) 64 FCR 61 (Aus Fed Ct).

¹⁴⁷ South Carolina Insurance v Assurantie Maatschappij ‘De Seven Provincien’ [1987] AC 24 (HL).

¹⁴⁸ Nokia v Interdigital Technology [2004] EWHC 2920 [34]–[35].

¹⁴⁹ Royal Bank of Scotland v Hicks [2011] EWHC 287 [94]–[97]. An injunction was also refused on the particular facts in Dreymoor Fertilisers Overseas v Eurochem Trading [2018] EWHC 2267.

¹⁵⁰ Bankers Trust International v PT Dharmala Sakti Sejahtera (No 1) [1996] CLC 252, 255E.

¹⁵¹ Omega Group Holdings v Kozeny [2002] CLC 132; see also Armstrong v Armstrong [1892] P 98; a similar result was reached in Allstate Life Insurance v Australian New Zealand Banking Group Ltd (No 4) (1996) 64 FCR 61 (Aus Fed Ct). However, see contrary Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992), where a Californian action for damages, whose underlying purpose was found probably to be to cross-examine in California a witness to the English action, was not restrained.

¹⁵² Nokia v Interdigital Technology [2004] EWHC 2920 [34]; Allstate Life Insurance Co v Australian New Zealand Banking Group Ltd (No 4) (1996) 64 FCR 61 (Aus Fed Ct).

¹⁵³ Benfield Holdings v Richardson [2007] EWHC 171.

¹⁵⁴ See Arab Monetary Fund v Hashim (No 6) (Hoffmann J, 14 July 1992), where it was held on the facts that there was no intention of dissuading the witness from giving evidence, and the injunction was refused.

¹⁵⁵ Bank of Tokyo v Karoon [1987] AC 45 (Note) (CA) 51–52 (per Bingham J at first instance); and see also Unwired Planet International v Huawei Technologies [2017] EWHC 2831 [8]–[10].

¹⁵⁶ Ch 1, section C, ‘Anti-Suit Injunctions in Other Legal Systems’.

¹⁵⁷ There are numerous examples discussed in English cases: see eg Western Electric v Racal-Milgo [1979] RPC 501 (CA) 518–19; Airbus Industrie v Patel [1999] 1 AC 119 (HL) 136C–E; Sabah Shipyard (Pakistan) v Islamic Republic of Pakistan [2003] 2 Lloyds Rep 571 [5]–[11]; Travelers Casualty and Surety Co of Canada v Sun Life Assurance Co of Canada (UK) [2006] EWHC 2885 (Comm) [29]–[38]; Winnetka Trading v Julius Baer International [2009] Bus LR 1006 [6]–[12]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [38]; Enercon v Enercon (India) [2012] 1 Lloyds Rep 519 [4], [26]; Talos Capital v JSC Investment Holding XIV [2014] EWHC 3977 [16] (set aside inter partes). See also Parnell v Parnell (1858) 7 IR Ch 322; and Cukurova Finance International v Alfa Telecom Turkey [2015] 2 WLR 875 (PC) [11]. It appears that the grant of a foreign anti-suit injunction will not prevent the English court, as a matter of English law, from hearing either the claim on the merits or an application for an anti-anti-suit injunction: see Sabah, at [9]–[15] [40]; the same is implicit in Enercon, at [50]–[52]; and in most cases the contrary has not even been argued: see eg Deutsche, at [38]. There is no known case of a foreign court seeking directly to restrain the English court itself.

¹⁵⁸ Winnetka Trading v Julius Baer International [2009] Bus LR 1006 [6], [13]–[14].

¹⁵⁹ Tonicstar v American Home Assurance [2005] 1 Lloyds Rep IR 32.

¹⁶⁰ The converse does not follow: it would be parochial if the English court were to object to a foreign anti-suit injunction merely on the grounds that an English court would not grant an anti-suit injunction on the same basis.

¹⁶¹ This passage of the first edition was followed in Carlyle Capital Corporation v Conway [2013] 2 Lloyds Rep 179 (Guernsey CA) [68]. See eg General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719 [15]; Ecom Agroindustrial v Mosharaf Composite Textile Mill [2013] 2 Lloyds Rep 196 [21]. In Deutz v General Electric (Thomas J, 14 April 2000), an anti-anti-suit injunction was refused, where the US court to which the application for an anti-suit injunction had been made was an appropriate court for the determination of questions of forum, and where all the relevant arguments on forum could be fairly advanced before the US court.

¹⁶² Anti-anti-suit injunctions have been granted (although not always under that label) in XL Insurance v Owens Corning [2000] 2 Lloyds Rep 500, 504; Sabah Shipyard (Pakistan) v Islamic Republic of Pakistan [2003] 2 Lloyds Rep 571 (CA); General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719; Tonicstar v American Home Assurance [2005] 1 Lloyds Rep IR 32; Goshawk Dedicated v ROP [2006] EWHC 1730 [27]; Ecom Agroindustrial v Mosharaf Composite Textile Mill [2013] 2 Lloyds Rep 196 [21], [39]; Swissmarine Services v Gupta Coal India [2015] EWHC 265 [31]; Tidewater Marine International v Phoenixtide Offshore Nigeria [2015] EWHC 2748 [14]. See also Carlyle Capital Corporation v Conway [2013] 2 Lloyds Rep 179 (Guernsey CA) [63]–[85].

For other pertinent discussions see EI Du Pont de Nemours v IC Agnew (No 2) [1988] 2 Lloyds Rep 240 (CA) 242; Dornoch v The Mauritius Union Assurance [2005] EWHC 1887 (Comm) [127]–[130]; Travelers Casualty and Surety Co of Canada v Sun Life Assurance of Canada (UK) [2006] EWHC 2885.

¹⁶³ Sabah Shipyard (Pakistan) v Islamic Republic of Pakistan [2003] 2 Lloyds Rep 571 (CA) [13], [40]–[45] (and see also Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [81]); General Star International Indemnity v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719 [16]; Carlyle Capital Corporation Ltd v Conway [2013] 2 Lloyds Rep 179 (Guernsey CA) [68]–[116].

¹⁶⁴ Carlyle Capital Corporation v Conway [2013] 2 Lloyds Rep 179 (Guernsey CA) [68].

¹⁶⁵ General Star International Indemnity Ltd v Stirling Cooke Brown Reinsurance Brokers [2003] Lloyds Rep IR 719 [16]; Tonicstar v American Home Insurance Co [2005] 1 Lloyds Rep IR 32.

¹⁶⁶ This follows a fortiori from Sabah Shipyard (Pakistan) v Islamic Republic of Pakistan [2003] 2 Lloyds Rep 571 (CA) [37], [52], where the parallel conclusion was reached in relation to a non-exclusive English jurisdiction clause; and see Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [81]. In relation to an exclusive jurisdiction clause, see Ecom Agroindustrial Corp v Mosharaf Composite Textile Mill [2013] 2 Lloyds Rep 196 [21], [36] (albeit undefended). See also Goshawk Dedicated v ROP [2006] EWHC 1730 [27] (where the parties had agreed to English arbitration, and an injunction was granted to restrain the pursuit of an ‘anti-arbitration’ application to the US courts).

¹⁶⁷ Aggeliki Charis Compania Maritima v Pagnan (The Angelic Grace) [1995] 1 Lloyds Rep 87 (CA). See generally Ch 7. But cf Carlyle Capital Corporation v Conway [2013] 2 Lloyds Rep 179 (Guernsey CA), where an anti-anti-suit injunction was issued in order to protect the Guernsey’s court’s insolvency jurisdiction notwithstanding exclusive jurisdiction clauses in favour of the other court.

¹⁶⁸ Sabah Shipyard (Pakistan) v Islamic Republic of Pakistan [2003] 2 Lloyds Rep 571 (CA) [36]–[37], [40]–[45]; Deutsche Bank v Highland Crusader Partners [2010] 1 WLR 1023 (CA) [81]. In Deutsche v Highland [78]–[87], the anti-anti-suit injunction aspects of the reasoning in Sabah were treated as the legitimate justification for the result in the earlier case; otherwise Sabah was restrictively interpreted and its wider reasoning criticized.

¹⁶⁹ Deutz v General Electric (Thomas J, 14 April 2000); and perhaps Ecom Agroindustrial v Mosharaf Composite Textile Mill [2013] 2 Lloyds Rep 196 [21].

¹⁷⁰ An example of this is Dell Emerging Markets (EMEA) v IB Maroc.com [2017] EWHC 2397 (Comm), where anti-anti-anti-suit injunctions were granted both at the without notice and with notice stages, although this is not discussed in the report.

¹⁷¹ GE Francona Reinsurance v CMM Trust No 1400 [2004] EWHC 2003 [10].

¹⁷² Ellerman Lines v Read [1928] 2 KB 144 (CA) 152–53, 154–55, 158; Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1 [205]; Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [93]–[94].

¹⁷³ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [93]–[94]; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁷⁴ D&F Man (Sugar) Ltd v Haryanto (No 2) [1991] 1 Lloyds Rep 161, 167–68, [1991] 1 Lloyds Rep 429 (CA) 438, 440; Industrial Maritime Carriers (Bahamas) v Sinoca International (The Eastern Trader) [1996] 2 Lloyds Rep 585, 602–03; Akai v People’s Insurance [1998] 1 Lloyds Rep 90, 108; Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1, 35; see generally the discussion in Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁷⁵ Ellerman Lines v Read [1928] 2 KB 144 (CA) 151–52 (per Scrutton LJ). In contrast Atkin LJ and Eve J did not seem to consider that comity imposed any restrictions in itself, and that fraud and breach of contract would suffice.

¹⁷⁶ It did not suffice in ED&F Man (Sugar) v Haryanto (No 2) [1991] 1 Lloyds Rep 161, [1991] 1 Lloyds Rep 429 (CA); nor in Industrial Maritime Carriers (Bahamas) v Sinoca International (The Eastern Trader) [1996] 2 Lloyds Rep 585, 602–03; and it would not have sufficed in Akai v People’s Insurance [1998] 1 Lloyds Rep 90, 108.

¹⁷⁷ Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [94]; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁷⁸ Industrial Maritime Carriers (Bahamas) v Sinoca International (The Eastern Trader) [1996] 2 Lloyds Rep 585, 602–03; Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁷⁹ Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA). In Whitworths v Synergy Food and Processing BV [2014] EWHC 2439 (QB) [68]–[74], the English court had granted an injunction to restrain pursuit of a foreign arbitration which it concluded was being pursued in breach of an agreement instead to arbitrate in England. Popplewell J refused to grant a further injunction to restrain enforcement in England of any arbitration award that might be the result; he viewed such enforcement as doomed to fail, not least because it would require the foreign arbitration to have been pursued in continuing contempt of court. Nevertheless, he concluded that it was premature, at that particular stage, to shut out the injunction defendant by an additional injunction from making any application to enforce the award, however doomed that might be, at least pending further developments in the arbitration. The decision does not involve a conclusion that an anti-enforcement injunction at a later point would never be appropriate.

¹⁸⁰ Akai v People’s Insurance [1998] 1 Lloyds Rep 90 [104] and Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA).

¹⁸¹ Ecobank Transnational v Tanoh [2016] [2016] 1 WLR 2231 (CA); Masri v Consolidated Contractors (No 3) [2009] QB 503 (CA) [94].

¹⁸² Bank St Petersburg v Archangelsky [2014] 1 WLR 4360 (CA) [34]–[39]; see the discussion in Ecobank Transnational v Tanoh [2016] [2016] 1 WLR 2231 (CA).

¹⁸³ See Ecobank Transnational v Tanoh [2016] 1 WLR 2231 (CA). The Bank St Petersburg case can be seen as depending on a ‘post-judgment’ objection, namely the agreement not to enforce which the Court of Appeal held existed.

¹⁸⁴ EI Du Pont de Nemours v IC Agnew [1988] 2 Lloyds Rep 240 (CA) 245, 249; Industrial Maritime Carriers (Bahamas) v Sinoca International (The Eastern Trader) [1996] 2 Lloyds Rep 585, 602–03; Mamidoil-Jetoil Greek Petroleum v Okta Crude Oil Refinery [2003] 1 Lloyds Rep 1 [202]; Bank St Petersburg v Archangelsky [2014] 1 WLR 4360 (CA) [27].

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