A separate jurisdictional gateway is not required to grant an anti-suit injunction, provided the injunction is ancillary to a substantive action that attracts English jurisdiction

Charlie Tomlinson

Golden Endurance Shipping SA v RMA Watanya SA gives clarity on the important jurisdiction to grant anti-suit injunctions. Burton J in his judgment makes clear that no separate jurisdictional gateway is required, providing the injunction is ancillary to claims where English jurisdiction is established.

The case concerned damage to a cargo of wheat bran pellets transported on the ship Golden Endurance from three African ports (Lomé, Owendo and Takoradi) to Morocco. The three bills of lading were all subject to English law, but only one contained a jurisdiction clause – the Lomé bill, which provided for London arbitration. The other two bills of lading were silent on the issue of jurisdiction.

The receivers of the cargo brought proceedings in Morocco in respect of all three bills of lading. In turn, the owner of the ship applied to the English court for an anti-suit injunction restraining the Moroccan proceedings.

In granting the anti-suit injunction in respect of the Lomé bill of lading, Burton J concluded that where the court already had jurisdiction over a defendant, as it had in respect of that contract given the contractual choice of jurisdiction, the claimant was entitled to apply for an anti-suit injunction providing it was ancillary to those contractual claims, without establishing an independent jurisdictional gateway.

However, the injunction sought in respect of the other two bills of lading was refused. Those claims could not be brought within any of the required jurisdictional gateways (not least given the absence of an English jurisdiction clause) and therefore failed. Moreover, the fact that the Moroccan courts would fail to apply the English proper law of contract (Moroccan courts apply the Hamburg Rules to bills of lading, rather than the Hague-Visby Rules, which English courts apply) did not give the English court jurisdiction where it had none.

Drawing that together, there are two key points coming out of this case. First, if the English court has jurisdiction in a substantive action then it will have jurisdiction to grant an ancillary anti-suit injunction. But if the court has no jurisdiction, then the mere prospect (or even likelihood) of a foreign court misapplying English law will not cure that fundamental impediment to the court granting injunctive relief.

Golden Endurance Shipping SA v RMA Watanya SA and others [2014] EWHC 3917 (Comm)

Post By Charlie Tomlinson (6 Posts)

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