| INJUNCTION — Jurisdiction to grant — Restraint of foreign proceedings — Claimant obtaining High Court damages award in England against foreign companies — Judgment debtors issuing proceedings in Yemen seeking to avoid liability under English judgment — Judgment creditor seeking anti-suit injunction — Whether necessary to establish separate cause of action — Whether jurisdiction to grant injunction
Masri v Consolidated Contractors International Co SAL and another (No 3) [2008] EWCA Civ 625; [2008] WLR (D) 184
CA: Sir Anthony Clarke MR, Longmore and Lawrence Collins LJJ: 6 June 2008
The English court had power over persons properly subject to its in personam jurisdiction to make ancillary orders in protection of its jurisdiction and its processes, including the integrity of its judgments. The power was a discretionary one to be exercised in accordance with the requirements of international comity.
The Court of Appeal so held, in a reserved judgment, dismissing an appeal by the judgment debtors, Consolidated Contractors International Co SAL (“CCIC”) and Consolidated Contractors (Oil & Gas) Co SAL (“CCOG”), from the order of Judge Mackie QC who, sitting as a High Court Judge in the Commercial Court of the Queen’s Bench Division on 25 May 2007 ([2007] EWHC 1510 (Comm)), had granted the judgment creditor, Munib Masri, an order preventing the judgment debtors from commencing or continuing proceedings (relating to an agreement the subject of High Court judgments between the parties) in any courts other than the English courts or European Union courts, including in particular proceedings in the Yemen. Both judgment debtors were incorporated in Lebanon but it was common ground that CCIC also had a domicile in Greece for the purposes of Council Regulation (EC) No 44/2001 of 22 December 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels I Regulation”).
LAWRENCE COLLINS LJ said that the ground of application for the injunction was that the proceedings commenced in the Yemen by the judgment debtors were vexatious and oppressive, and, inter alia, were an attempt to re-litigate issues determined in the English court. The present case was not one where the foreign court had given a judgment with which an English injunction would be inconsistent. It was simply a case in which the judgment debtors sought to re-litigate abroad the merits of a case which, after a long trial, they had lost in England. It was a classic case of vexation and oppression, and of conduct which was designed to interfere with the process of the English court in litigation to which the judgment debtors had submitted. Where a party was properly before a court, an anti-suit injunction was not a separate claim requiring its own basis of jurisdiction. In alternative forum cases, such as the present, it was not necessary for the applicant for an anti-suit injunction to rely on a cause of action establishing a separate right not to be sued. The right to apply for an injunction was not of itself the cause of action, but was ancillary and incidental to the existing proceedings. The judgment debtors’ submission to the English jurisdiction in those proceedings was a sufficient basis for the imposition of the anti-suit injunction. No separate basis of jurisdiction was required either under the Brussels I Regulation or under CPR r 6.20. Nor was it necessary that an injunction directed at a domicilliary of a Brussels I Regulation state be a protective or provisional measure; but if that were necessary then the anti-suit injunction was such a measure. In the present case the discretion had been properly exercised consistently with the dictates of comity. It was consistent with principle for an English court to restrain re-litigation abroad of a claim which had already been subject of an English judgment. There was long-established authority that protection of the jurisdiction of the English court, its process and its judgments was a legitimate ground for the grant of an anti-suit injunction. The judgment creditor had accepted, however, that the injunction should be varied to exclude non-EU contracting states which were party to the 1988 Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.
SIR ANTHONY CLARKE MR and LONGMORE LJ agreed. |
