Commercial Court grants anti-suit injunction where “vexatious interference with the due process of the court”

Kaisa Patsalides

The Commercial Court has granted an anti-suit injunction against a claimant in Ardila Investments NV v ENRC NV and another.

The case concerned a dispute regarding payment obligations arising from a share purchase agreement (“SPA”) which contained a non-exclusive jurisdiction clause in favour of the English courts. Ardila had sought payment from ENRC of US$220 million pursuant to the SPA, which the defendant denied was payable. ENRC cross-claimed for repayment of various debts said to be owed to it by Ardila under the same agreement.

Without notice to the defendant, Ardila obtained an order from the courts of Curacao to “attach” the claimed debt as purported security for its own pending claim against ENRC. The effect of the pre-judgment attachment was to prevent ENRC from being able to enforce any judgment it might obtain from the English court on its cross-claim against Ardila.

ENR applied for an order to require Ardila to procure the discharge of the Curacao attachment, on the basis that it amounted to an attempt to frustrate an order of the English court (whose jurisdiction Ardila had itself invoked by starting proceedings there).

The court revisited the principles for the grant of anti-suit injunctions set out in Glencore International AG v Metro Trading International Inc (No. 3) [2002] EWCA Civ 528. It held that Ardila’s actions amounted to “a vexatious interference with the due process of the court” and granted an anti-suit injunction to restrain the Curacao proceedings.

The Commercial Court was mindful that an anti-suit injunction interfering with foreign proceedings was not to be granted lightly. Any such injunction had to arise from conduct which was tantamount to an abuse of process, and be necessary to protect the applicant’s legitimate interests in English proceedings. On the facts, the court was satisfied that the Curacao order amounted to an unconscionable and self-serving attempt by Ardila to prevent compliance with a judgment in English proceedings which it had itself brought.

Ardila Investments NV v ENRC NV and another [2015] EWHC 1667 (Comm)

Post By Kaisa Patsalides (8 Posts)

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