English Court refuses to set aside anti-suit injunction

Sam Silver

In Owners of the Ship “Al Khattiya” v Owners and/or Demise Charterers of the Ship “Jag Laadki” [2018] EWHC 389, the court considered an application to stay proceedings on forum non conveniens grounds and to set aside an anti-suit injunction.

The basic facts were as follows:

• The defendant (D) admitted liability after a collision between its vessel and the claimant’s vessel on the shores of Fujairah (within UAE waters). The claimant (C) served English proceedings on D to determine the quantum of the claim.

• D, however, brought proceedings in Fujairah, relying on the principle in Cordoba Shipping Co Ltd v National State Bank (The Albaforth) that the jurisdiction in which a tort has been committed is prima facie the natural forum for determination of the dispute.

• C successfully applied to the English courts for an anti-suit injunction against D, ordering D to discontinue proceedings in the UAE.

• D applied to stay the English proceedings on the basis that the collision occurred in Fujairah, and this was therefore the natural forum for such a claim. Further, England being the natural forum should be a pre-condition to the granting of an anti-suit injunction and so the anti-suit injunction should be set aside.

As regards the forum non conveniens arguments:

• C contended that the place of the collision was not determinative. Of more significance was the extent it gave rise to other connecting factors, as per VTB Capital plc v Nutritek International Corp [2013] UKSC 5, where it was held that the Albaforth principle was a useful starting point, but connecting factors must be taken into account before deciding on the claim’s natural forum.

• The court refused the application to stay English proceedings, concluding that England was the natural forum. A distinction was made between liability and quantum – as D had already accepted liability, the case was concerned with the quantum only. This meant that it would not be necessary for investigations or witness examinations, which in cases concerned with liability might indicate that the place of collision would be the natural forum. Further, taking into consideration the judgment in VTB v Nutritek, where focus must be had on all relevant connecting factors, there were very few connecting factors with Fujairah directly related to quantum. More significantly, the quantum experts were English speakers and the documents were in English.

As regards the anti-suit injunction:

• D argued it was an essential condition for the grant of an anti-suit injunction on vexatious or oppressive grounds, that England should be the natural forum for the claim.

• As the Court had already decided that England was the natural forum, D’s argument did not need further consideration.

• However, the Court confirmed that it would have rejected D’s argument. The only requirement for granting an anti-suit injunction was that the English court should have a sufficient interest in the matter. This could be satisfied where the court was the natural forum, but also by showing that the foreign proceedings interfered with the due process of the English court.

Post By Sam Silver (3 Posts)


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