Royal Bank of Canada v Cooperatieve Centrale Raiffeisen-Boerenleenbank BA

This is an appeal, with permission of the Judge from the order of Andrew Smith J made on the 2^nd December 2003 whereby the Judge dismissed an application by the claimant, Royal Bank of Canada (“RBC”) for an injunction restraining the defendant, Coöperatieve Centrale Raiffeisen-Boerenleenbank BA (“Rabobank”) from taking any step to obtain a determination of any issue raised in proceedings instituted by Rabobank against RBC in the commercial division of the Supreme Court of the State of New York save for the purpose of completing party and third party factual discovery.

The case arises from the collapse of the American energy dealing conglomerate Enron. RBC is a Canadian bank having its principal place of business in Toronto. Rabobank is an institution organised under the laws of the Netherlands having its principal place of business in Utrecht. Both parties do business in London and New York. RBC’s claim is based upon a swap agreement with Rabobank recorded in a Total Return Swap Confirmation dated 31^st January 2001. By the agreement recorded in the confirmation Rabobank was liable to pay RBC $517m, plus $6m interest, on the 28^th June 2002. The Total Return Swap formed part of a structured finance transaction involving a block of shares in a publicly traded company called EOG Resources Inc, the shares being owned by Enron Corporation. The transaction involved two closings. At the first closing on the 29^th November 2000 RBC advanced part of the sum equivalent to the purchase price of the EOG shares to an entity called Heracles Trust. By the second closing, which was on the 31^st January 2001, RBC had effectively advanced the full sum of $517m. Rabobank’s involvement in the transaction was at the stage of the second closing when it entered into the Total Return Swap with RBC and an Equity Swap with Enron North America, which was guaranteed by Enron Corporation. As part of the arrangement of the second closing, Rabobank assumed part of the Enron credit risk.

The Total Return Swap formed part of, and was subject to an International Swap Dealers Association Master Agreement dated the 9^th January 1995. The Master Agreement was expressly governed by and to be construed in accordance with English law and included the following provision:

This is a “non-exclusive” jurisdiction clause. Whereby, the parties precluded themselves from denying that the English court had jurisdiction to try the issues arising under the Swap Agreement and also from submitting that the English court was not a convenient forum in which to determine those issues. However the clause gives express sanction to the determination of those issues in proceedings in a court other than the English court and also expressly contemplates that proceedings to determine those issues might be run in parallel and simultaneously in a number of jurisdictions in addition to that of the English court. It does not expressly deal with what should happen should parallel proceedings throw up the possibility of simultaneous trials in different jurisdictions where the issues to be tried were substantially the same.

Between paragraphs 6 and 28 of his judgment the judge sets out the background facts of the case and the history of the litigation. The only matter which he does not set out which has emerged since his judgment and since this appeal was launched is that the parties have agreed that, in the event that this appeal fails, RBC will seek to adjourn the English proceedings until after judgment in the New York proceedings in consideration of which Rabobank have agreed to seek the postponement of the commencement of the New York proceedings. .

In summary RBC’s claim is for damages in the sum of approximately $523.8m payable under the contract of the 28^th June 2002 but which Rabobank gave notice that it would not pay on the 21^st June of that year. On the same day Rabobank commenced the New York proceedings claiming rescission of the Total Return Swap agreement and for damages in the alternative on the grounds of fraudulent misrepresentation the amount of the damages being the same sum of $523.8m. RBC commenced these proceedings on the 24^th June 2002 being the next working day after the 21^st. The claims and cross claims in the English and New York proceedings mirror each other.

The salient facts which the judge had to consider seem to me to be as follows:-

The case arises from the circumstances of the collapse of the Enron Group whose centre of operations was the USA. Consequently the bulk of the documentary evidence emanates from sources in the United States.

Conversely RBC says that all its witnesses and all those intended to be called by Rabobank, save one, are in London.

The issues in the case are not confined, or not necessarily confined, to issues governed by English law. The judge found that as a result of the possible impact of New York law on the proceedings, Rabobank could point to a legitimate juridical advantage in pursuing proceedings in New York. From that finding there is no appeal.

Conversely the Total Swap Agreement and issues arising from it are governed, as the parties have agreed, by English law.

Rabobank commenced their proceedings in New York before RBC commenced theses proceedings albeit by the narrowest of margins.

RBC have used the New York proceedings in an attempt to obtain an early resolution. They have attempted to obtain summary judgment in their favour albeit the attempt failed.

At paragraph 29 of his judgement the judge summarised the law applicable to an application under section 37 of the Supreme Court Act 1981 for an injunction to restrain proceedings in a foreign court in such circumstances as fall to be considered in the present case. The judge did not understand the principles that he summarised to be disputed and they were not disputed in this court. I will set out the judge’s summary of the applicable legal principles verbatim as follows:-

Mr Malek for Rabobank made the following further submissions of law developing the judge’s summary which, again, were not challenged. Those submissions are set out between paragraphs 16 and 19 of his written submissions to this court as follows:-

I accept Mr Malek’s further submissions of law.

In addition to the juridical advantage which I have already mentioned, and which the judge found that Rabobank were entitled to expect, the judge made two other findings from which there is no appeal to this court. These are, first, that the manner in which Rabobank had been conducting the New York Proceedings was not vexatious or oppressive in the sense spoken of in the Aerospatiale case, and second, that the English court was not a more natural or more appropriate forum for the trial of the issues between the parties than the New York Court.

This appeal is concerned with what the judge described at paragraph 41 of his judgment as “RBC’s more general complaint that it is inherently unconscionable for Rabobank to seek the determination of the New York proceedings. RBC does not say that it was vexatious or oppressive for Rabobank to have brought the New York proceedings in the first place. Its complaint is that the only proper purpose for conducting the New York proceedings was in order to use the New York procedures for disclosure and depositions in order to gather evidence, which can be deployed in this action.” In the course of argument before this court Mr Philipps for RBC accepted that at no stage had Rabobank given RBC any representation or reason to assume that, having commenced the New York proceedings they would not be pressed to a hearing and judgment.

At paragraph 53 of his judgment the judge posited, in my view, and with respect, correctly, the central question which he had to decide in the following words:-

The judge having considered the jurisdiction clause and its significance to the issue and three authorities where the English court considered the granting of injunctions against the bringing of foreign proceedings where the agreement between the parties to those intended proceedings contained a non-exclusive jurisdiction clause concluded that “while it might well be convenient to grant the injunctions sought by RBC it would not be just to do so…” In summary Mr Philipps for RBC submits that this conclusion was wrong because it failed to give proper effect to the jurisdiction clause. In particular, Mr Philipps submitted that the judge ought to have construed the jurisdiction clause as conferring on the English court the status of the “primary forum” for the resolution of the issue between the parties so as to resolve the difficulty and consequent oppression to RBC from the prospect of having to contest the same issues in two separate courts simultaneously, by making an order restraining the New York proceedings.

In my view Mr Philipps’ submissions involve a progression through the following series of stages:-

The jurisdiction clause conferred on the English court, by contract, an unchallengeable jurisdiction to adjudicate on the dispute between the parties.

This carried with it a jurisdiction to rule on where (i.e. in which national court) that dispute was to be finally determined by trial and judgment. In Pathé Screen Entertainments v Hand Made Films unreported 11^th July 1989 Mr Justice Hobhouse said this at page 52 of the transcript of his judgment considering a case where a disputed agreement contained a non-exclusive jurisdiction clause:-

“The policy of the law must… be to favour the litigation of issues only once in the most appropriate forum” see per Lord Justice Bingham in Du Pont v Agnew [1987] 2 Lloyds Rep. at page 589.

Whereas RBC accept that the jurisdiction clause contemplates parallel proceedings up to the point of trial, “the parties cannot be taken sensibly to have contemplated that their rights would proceed to a final determination, or that they would be required to prepare for and commence two trials, in two jurisdictions, simultaneously. See paragraph 8(4)(a) of RBC’s grounds of appeal.

The jurisdiction clause is to be construed as the parties’ acceptance of the English court as the “primary forum” to determine any dispute arising from the Total Swap Agreement. “It is quite clear that proceedings brought in England are agreed to have a different status to proceedings brought in any other jurisdiction.” See paragraph 40.1 of Mr Philipps’ written submissions.

Thus were there to be a prospect of simultaneous trials a term is to be implied into the jurisdiction clause that either party would be able to insist that trial take place and be completed first in the English court. See paragraph 8(4)(b) of the grounds of appeal. At paragraph 40.2 of his written submissions Mr Philipps submits that “one consequence of the parties’ agreement that proceedings brought in England have a different status to proceedings brought in any other jurisdiction is that they must be regarded as having agreed and understood that, in the event that proceedings were commenced simultaneously in England and in another jurisdiction then:

Thus any attempt to bring about a trial in a jurisdiction other than England would be “to seek to re-write the parties’ bargain” and to “deprive RBC of its contractual expectation that, if there were proceedings in England, then, absent exceptional circumstances (which are not suggested) the parties’ rights would be determined in those proceedings…” See paragraphs 8(4)(c) and (d) of the grounds of appeal.

At paragraph 84 of the judgment the judge states that he had considered the application “primarily in terms of whether Rabobank’s conduct is, or would if continued be, vexatious or oppressive” and that is how it is put in the application notice. The judge continues:-

I now consider each of the stages of Mr Philipps argument which I have set out above in turn.

The first stage is uncontroversial. I accept the submission of law in the second stage. However it does not seem to me to follow that the English court, in the exercise of its jurisdiction to choose the forum where the issue is to be tried, necessarily chooses itself and Mr Philipps accepts this. The choice will involve all the now familiar considerations, rehearsed in this and the judge’s judgments, to be considered in coming to the conclusion as to which forum is the most natural and appropriate for the trial of the issues. The English court may elect not to make a selection if the choice is between two fora for example, and the appropriate criteria for ruling out either of them are not met.

As to stage three the submission of law is again uncontroversial. The judge cites from the judgment of Lord Justice Bingham in Du Pont v Agnew the passages which I have set out at paragraph 85 of his judgment but he continues “however, as Bingham LJ also recognised, this is never the only consideration to be brought into the balance: “The general undesirability of such concurrent proceedings is … but one consideration to be weighed as part of the overall assessment. It cannot necessarily lead to a stay or setting aside of English proceedings. It may, on the facts, be correct to restrain the pursuit of the foreign proceedings…or to make no order.””

The judge deals with stage four between paragraphs 78 and 82 where, having set out the problems caused by simultaneous trials he then says:-

I agree with the judge. I would only add that it seems to me that by entering into an agreement containing a jurisdiction clause with provisions similar to the final paragraph of the jurisdiction clause in issue in this case, the parties must have had in contemplation the possibility of virtually simultaneous trials with all the additional burdens which the judge describes since such is an obvious possible consequence of permitting parallel proceedings in the absence of provision in the jurisdiction clause, or elsewhere in the agreement, for the means of avoiding those consequences.

The judge deals with stage five at paragraph 69 and 70 of his judgment. He was unable to accept that the jurisdiction clause was to be construed so as to confer on the English court the title of “primary forum” in the sense that, in any conflict between the English forum and any other forum, as to the place of trial, the English court should take precedence. He said:-

I agree with the judge.

As to stage six for a combination of the reasons set out under stages four and five above I cannot accept that the court should imply a term into the jurisdiction clause that in the event that parallel proceedings throw up the possibility of simultaneous trials and one of the sets of proceedings is in the English court, either of the parties is entitled to insist that the English trial should take precedence and be completed before any trial in another jurisdiction can start. Any such implied term would be inconsistent with the express term of the jurisdiction clause.

Since I do not accept that it is possible to imply the term proposed at stage six into the jurisdiction clause, it follows that Rabobank’s pursuit of the New York proceedings to a hearing and judgment, being permitted by the terms of the agreement between the parties, cannot constitute a breach of contract by Rabobank nor vexatious and oppressive conduct.

As before the judge Mr Philipps cited to us the decision of Mr Justice Hobhouse in the Pathé case, the unreported case of Amoco v TGTL of 26^th June 1996 a decision of Mr Justice Waller which followed it, and the recent decision of the Court of Appeal in the Sabah case. These were all cases which involved non-exclusive jurisdiction clauses. They were cited in support of the proposition that where parties have agreed a non-exclusive jurisdiction clause it is not necessarily offensive to comity to grant an injunction restraining proceedings in a court other than that specified in the clause and, secondly, that the presence of such a clause may have the effect of lightening the burden on the applicant of establishing vexatious or oppressive conduct by the other party in pursuit of parallel proceedings where there is no contractual bar. The judge expressly accepts the second proposition and he was correct to do so. See the judgment of Lord Justice Waller in Sabah at page 581 at paragraph 40. The whole of his judgment proceeds on the basis of the first proposition. I do not regard either proposition as inconsistent with the conclusion to which I have arrived.

In the Sabah case the Court of Appeal was considering a case in which the applicant for an anti-suit injunction had entered into a contract for the supply of design construction and operation of electrical facilities to a Pakistan state owned company whose performance was guaranteed by the government of Pakistan. The contract contained a non-exclusive jurisdiction clause by which each party consented to the jurisdiction of the English courts to resolve any dispute between them and to enforce its terms. The contract also contained an arbitration clause. A dispute having arisen it was referred to arbitration and the arbitrator awarded a sum in favour of the applicant supplier whereupon the government of Pakistan issued proceedings in the Pakistan court claiming declarations that the award had been obtained by fraud and that Sabah should be permanently restrained by injunction from making any demand under it. The Court of Appeal upheld the order of the judge granting an anti-suit injunction against the government of Pakistan. In his judgment at page 581 of the report (paragraph 42) Lord justice Waller says this:-

Lord Justice Pill at page 583 paragraph 52 says:-

Mr Philipps cited those passages as authority for his proposition that the jurisdiction clause in the present case was to be treated as conferring “primacy” on the English court in any conflict arising from the existence of parallel proceedings and the prospect of virtually simultaneous trials.

Mr Philipps however was bound to acknowledge that the jurisdiction clause in the Sabah case contained no such provisions as those in the present jurisdiction clause which expressly contemplate parallel proceedings taking place. He submits, however that the parties did not contemplate parallel trials and that if “trials” is substituted for “proceedings” in the above quoted passages from the judgments in Sabah they constitute authority for his submission.

As I have already explained I do not accept that the parties in the present case who entered into this jurisdiction clause can be taken not to have contemplated the possibility of simultaneous trials. In any event it is clear that the proceedings commenced by the government of Pakistan to restrain any demand by Sabah for the sum awarded, thus making the commencement of proceedings in England impossible, was a plain breach of the terms of the jurisdiction clause in that case by which the parties accepted the jurisdiction of the English court. It does not seem to me that the decision of the Court of Appeal in the Sabah case assists RBC.

In his judgment in the Sabah case at paragraph 40 Lord Justice Waller accepted that although anti-suit injunctions are theoretically in personam “foreign courts do consider such injunctions as an interference with proceedings in that country and that English courts for that reason should be cautious before granting such an injunction.” In the present case the judge had a discretion whether or not to grant the injunction sought. His approach to his decision to refuse the injunction does not reveal any error of law and, in my judgment, he was right to refuse it. In any event it is clear that he was entitled to arrive at that conclusion on the material before him.

I would dismiss this appeal.

This appeal centres around the effect of clause 13(b) of the Master Agreement of the International Swap Dealers Association, Inc. (“ISDA”), as incorporated into the parties’ agreement dated 9^th January 1995. We were told that a similar clause appears in the modern version of the ISDA Master Agreement. Evans-Lombe J has set out clause 13(b) and referred to the circumstances which lead to the appeal.

The second paragraph of clause 13(b) could, if read in the widest and most literal sense, permit any duplication of proceedings whatsoever. I would question whether it should be so read. In particular, I question whether its concluding phrase (“nor will the beginning of Proceedings in any one or more jurisdictions preclude the bringing of Proceedings in any other jurisdiction”) is capable of referring to the bringing of such proceedings by different parties in different jurisdictions. It seems more likely that what was in mind was the duplication of proceedings by the same party. On that basis, the first part of the second paragraph may be read as referring to the bringing of proceedings outside England by one party before any proceedings have been begun by the other party in England. In the present case, however, Rabobank’s proceedings in New York were begun before, albeit only just before, any proceedings were brought by RBC in London. I would not, as presently advised, find it possible to read into clause 13(b) any implied contractual exclusion of the right to continue any foreign proceedings begun by a party in this way prior to any English proceedings against that party. In any event, and no doubt bearing in mind the late stage which the New York suit had reached by the time when the present application was made, Mr Philipps QC representing Royal Bank of Canada (“RBC”) has not argued for so broad a proposition. The key to this appeal is, in his submission, that Rabobank’s pursuit of the New York suit has, recently and at a late stage, become oppressive by reason of the assignment to it in October 2003 of a trial date in early 2004 (which would precede the trial date fixed for the English action) and the circumstances in which this occurred.

The general principles, which govern the exercise of the English court’s jurisdiction to grant an injunction restraining a party from pursuing foreign proceedings in the absence of any non-exclusive jurisdiction clause, are well-established. The judge set out six principles with references to relevant authority in paragraph 29 of his judgment, quoted by Evans-Lombe J in paragraph 8 of his judgment. But caution is required in relation to the fifth suggested principle. It is couched in words echoing those of Lord Goff at p.895D in Société Aerospatiale v. Lee Kui Jak:

In the second passage referred to by Andrew Smith J, at p.896F-H Lord Goff further explained the correct principle as follows:

As to paragraph 16 of Mr Malek’s skeleton, it is worth noting that, immediately after the passage in Aerospatiale at p.894B-C, Lord Goff went on to refer with approval to the words of caution of Bowen LJ in McHenry v. Lewis 22 Ch.D. 397, 407-408, and to say, in their light, both that it was “wise to remember the breadth of the jurisdiction” (being to restrain not merely where proceedings were vexatious, in the sense of frivolous or useless, but also where they were oppressive) and that everything depended on the circumstances of the particular case. Bowen LJ said this:

Turning to paragraph 19 in Mr Malek’s skeleton, the authorities stress the importance of comity and that there is a resulting need for caution. The adjective “great” which is added in Mr Malek’s skeleton does not appear in the authoritative statements in Aerospatiale at p.892E-F, Airbus Industrie at p.133F and Turner v. Grovit at paras. 25-28. However, Lord Goff went on to say in this connection in Aerospatiale at p.892F that:

Clause 13(b) requires us to consider the impact on these general principles of a non-exclusive jurisdiction clause. It is common ground that, in consequence of its terms, neither party can object to the exercise by the English courts of jurisdiction on the ground that England is not a convenient or natural forum. But it is also common ground that it permitted the commencement and pursuit of the New York suit, unless this was oppressive. As I have already said, I cannot see how this contractual permission could be affected or withdrawn by the subsequent commencement of English proceedings; and it has not been submitted by RBC either here or below that it is. What is submitted is that the parties cannot have contemplated that both English and foreign proceedings should go to trial, and that an English non-exclusive jurisdiction clause not only “lightens the burden” on the English court of showing oppression, but also enables the English court “more readily [to] assume the task of deciding where the dispute between the parties should be determined”. That the burden of showing oppression must be lightened in the sense that the clause establishes as a starting point that England is a natural forum is clear. That the English court assigned by a non-exclusive jurisdiction clause cannot be regarded as “arrogating” jurisdiction if it decides where the dispute should be tried, and that this creates “a radical difference to the situation referred to by Lord Goff” in Aerospatiale, was stated by Hobhouse J in Pathe Screen Entertainment Ltd. v. Homemade Films (Distributors) Ltd. (Comm. Ct. 11^th July 1989) at p.52, and supported by Waller J in Amoco v. TGTL (Comm. Ct. 26^th June 1996). Hobhouse J was dealing with a party who brought proceedings abroad, when England was on any view the natural forum, and then raised some of the same claims by way of counterclaim in English proceedings. Waller J was dealing with a situation where, at a time when the English proceedings were well on the way to trial, the English defendants commenced Texan proceedings on the same subject, which they sought to justify as aimed at obtaining discovery under Texan procedures. Waller J said this:

The difficulty about transposing either Hobhouse J’s or Waller J’s statements to the present case is that clause 13(b) did here expressly contemplate both the commencement of foreign proceedings prior to any English proceedings and, as a result thereof, the concurrence of parallel proceedings here and abroad. The third case relied on by the appellants is Sabah Shipyard (Pakistan) Ltd. v. Islamic Republic of Pakistan [2002] EWCA Civ 1643; [2003] 2 Lloyd’s Rep. 571. A guarantee granted by the Republic to Sabah contained a non-exclusive jurisdiction clause in favour of England. Sabah obtained an arbitration award against the principal debtor in Singapore, and the Republic commenced proceedings in Islamabad to obtain an order restraining Sabah from making any demand whatsoever against the Republic, so having the effect of preventing Sabah commencing proceedings in England. This court upheld the grant of an injunction to restrain the Republic from continuing the Islamabad proceedings. The Pathe Screen and Amoco cases were cited. Waller LJ, with whom Nourse LJ agreed, said that it was clearly a breach of contract to seek to prevent Sabah commencing proceedings in the agreed English jurisdiction. But he and Pill LJ also stated that, in the light of the jurisdiction clause, parallel proceedings could not have been intended, in the absence of exceptional circumstances (cf paras. 36 and 52), so that, even if the case had simply been one of concurrent proceedings with the English and Pakistan proceedings covering the same ground (and, apparently, in whatever order they were begun), it would have been vexatious and oppressive to pursue the Pakistan proceedings. Again, the present case differs in so far as clause 13(b) expressly contemplates that either party might issue proceedings abroad instead of in the agreed non-exclusive English forum.

Clearly, the English court could still intervene to restrain such proceedings, or their pursuit, if they or it could be categorised as oppressive. Andrew Smith J was prepared to accept that clause 13(b) still had the effect that the English court would “more readily assume the task of deciding where the dispute between the parties should be decided”. Mr Malek for Rabobank challenges the correctness of the statement. But, even assuming it to be correct, the English court can only assume such a task within the parameters of clause 13(b). The premise of RBC’s case on this appeal is that the mere issue of the New York suit was not oppressive – on which basis it follows that there can be no suggestion that the late stage which that suit has reached or RBC’s participation therein to date prejudices the present application. In the same sense, RBC positively accepts as a second premise that the New York proceedings could, after the commencement of the English action, properly be continued by Rabobank for the purpose of obtaining depositions and third party discovery. Rabobank for its part has not of course advanced or examined the possibility that the New York suit might have been viewed as oppressive either as commenced or once the English suit was itself commenced or firmly established (as it was on any view after Moore-Bick J had refused a stay on 23^rd January 2003). In these circumstances, we are not in a position to express any concluded view about the position if an application to restrain the New York suit had been made at an earlier stage in the present proceedings. But I should not be taken as necessarily accepting the correctness of RBC’s stance, in particular the second premise.

RBC’s submission before us is that, while the New York suit may have fulfilled a relevant function in enabling evidence to be gathered, with depositions and third party discovery, primacy should now be conceded to the English proceedings when it comes to trial. Rabobank has, however, never accepted that the New York suit should be confined to evidential purposes or to purposes collateral to the English proceedings, or that it should not go to trial, or not go to trial prior to the English action. Further, the normal and natural intention when commencing proceedings is that they should go to trial, with all and any consequences that that may have for any other proceedings, whether as a result of res judicata or issue estoppel.

If RBC’s submission were otherwise good, then I would agree with the judge that RBC has not prejudiced its position regarding the primacy of English proceedings for the purposes of trial by leaving it until October 2003 to seek an injunction. As the judge pointed out, it was only in October 2003 that Justice Ramos, sitting in the New York, indicated that there could be a trial date as early as January 2004. Until that date, it cannot be said to have been unreasonable to think that the New York proceedings would be decided after the English proceedings, which were on 28^th January 2003 fixed for a trial commencing on 8^th March 2004. The present application was brought without delay as soon as it became apparent that the New York proceedings were likely to go to trial before the English action. (Subsequently, in order to obtain a postponement of the New York trial until 1^st March 2004, RBC has agreed that, if its present application to restrain the New York suit fails, the English proceedings should be stayed pending the outcome of the New York suit.)

The judge accepted the burden of having two trials in two jurisdictions. But he pointed out that it was unlikely that two trials would come on at the same time. If there was a risk that they would, then RBC could, if necessary, have the English trial date postponed. Viewed in this way, RBC’s real objection was to having a New York trial first, the outcome of which would in probability determine much if not all that was in issue in England, by virtue of principles of res judicata or issue estoppel. In the event, any risk of concurrent trials has been avoided by the agreement which I have indicated.

There appears to me some force in RBC’s objections to Rabobank’s attitude and statements in the New York suit during the application which led to Justice Ramos proposing a January 2004 trial date. Rabobank put forward an inaccurate and potentially misleading account of Moore-Bick J’s attitude to a stay of the English action, and urged that an early trial date in New York would be the key or “ticket” to such a stay. I have been concerned that Rabobank may have obtained an unfair advantage as a result of such statements. But Andrew Smith J held (at paras. 23-24, 27, 37 and 39) that these were innocent mis-statements and that there was every indication that Justice Ramos was not influenced by them, and, further, that Justice Ramos gave a January 2004 trial date in the ordinary course (this being a relatively old case and it being his court’s aim to try any such case within 18 months from its commencement), and that the New York proceedings “will not have been pursued with unusual or unexpected speed if they are tried in January 2004”. On this appeal, RBC does not seek to revisit these conclusions. It does not suggest that Rabobank was in any way acting in breach of New York law or procedure. It does not dispute that, if the New York court was in any way misled, that is a matter for it and not the English court. It does still suggest that it was unconscionable for Rabobank to seek an early trial date as the key to an English stay, and that the English proceedings ought to have been given primacy. However, in the light of the judge’s conclusions that January 2004 represented a normal trial date in New York terms, and that Justice Ramos was not influenced by Rabobank’s statements, I have come to the conclusion that there cannot be any decisive significance on the present application in statements made by Rabobank which, even if inaccurate and inappropriate in themselves, had no relevant effect on the New York judge.

Rabobank submits and the judge accepted that, in addition to the fact that the New York suit is coming on for trial within a usual period and without any undue acceleration which can be attributed to any misrepresentation, trial of the issues in New York is of legitimate juridical advantage to it, in so far as its claims include some claims, notably in deceit and fraud which are (Rabobank will submit) subject to New York law and fall outside clause 13(a). The judge accepted this as a valid point and gave it some weight (paragraph 75). However, he also refused to accept that the trial of the New York suit prior to that of the English action would be oppressive unless Rabobank could identify some juridical advantage in the New York suit (paragraph 87). Bearing in mind the limited pleading, the breadth of the non-exclusive jurisdiction assigned by clause 13(b) and the very sparse explanation provided by Rabobank when asked in correspondence to explain the suggested advantage, I prefer not to rest my judgment on any such suggested advantage. However, I agree with the judge that it is unnecessary under clause 13(b) for Rabobank to identify any continuing positive juridical advantage at this stage of the New York suit in the circumstances of this case.

In my view, it cannot be right for this court to contemplate interfering indirectly with the trial of the New York suit at this stage, in circumstances when it must be taken, on RBC’s own case, that (a) the New York suit was properly commenced and (b) the New York suit offered Rabobank perceived procedural advantages in terms of pre-trial discovery including oral depositions, which RBC itself has not before us sought to deny; and when, further, (c) both parties have, subsequent to the commencement of the English action, vigorously participated in the New York suit over a very considerable period, without any agreement by Rabobank that the New York suit should not go to trial, (d) the New York court was asked to stay its own proceedings on grounds of forum non conveniens and refused in early 2003 in a decision upheld on appeal in June 2003 and (e) the New York trial date has now been fixed in the ordinary course of the New York court’s practice in relation to such a suit, as far as the New York judge is concerned.

Amplifying some of these points, the New York suit was the first suit commenced, and so a suit of a kind expressly contemplated by clause 13(b); and it is a premise of RBC’s case (although not one the correctness of which we should be taken as necessarily endorsing) that it could be and was properly pursued by Rabobank with a view to obtaining the advantages of depositions and third party discovery in New York. Extensive discovery, both documentary and in the form of some 53 depositions has been sought and obtained. On 31^st July 2002 RBC moved for dismissal of the New York suit on the merits, at the same time as moving to stay on grounds of forum non conveniens. Extensive evidence and argument took place on the motion to dismiss, including evidence of English law from Professor Ewan McKendrick and Mr Robin Potts QC. The motions were denied on 31^st January 2003 and RBC’s appeal was dismissed on 26^th June 2003. When the present English action was before Moore-Bick J in January 2003 on Rabobank’s unsuccessful application for a stay (which was carefully put on the basis of case management, not forum conveniens, having regard to clause 13(b)), RBC also expressly contemplated during submissions that, unless the New York judge ordered a stay, the New York suit might go first to trial and give rise to “estoppel consequences” (Core C2 p.424F-G)).

I would not rule out the possibility of an English court concluding that a foreign suit, properly commenced and pursued at the outset, had become oppressive during its course. But proceedings once begun are normally intended to be pursued to trial; and there may be consequences which are difficult to foresee or cover, in costs and otherwise, if parties who have fought foreign proceedings in depth and over a long period are at a late stage required by an English court to abandon or stay them. I am prepared to assume, for present purposes, that even a non-exclusive jurisdiction clause in the form of clause 13(b) can still somewhat relax the inhibitions which an English court may otherwise feel in interfering with a foreign suit and that the English forum may in that way be given a certain “primacy”. Even so, considerations of comity grow in importance the longer the foreign suit continues and the more the parties and the judge have engaged in its conduct and management. Indirect interference with a foreign trial date engages this consideration in a most obvious way. It would in my view require stronger circumstances than the present before a New York suit which had been so fully and properly contested up to a point near trial could be characterised by an English court as having become oppressive, or as having been conducted oppressively by the foreign claimant, on the ground that the foreign claimant had sought a trial date which, when fixed in the ordinary course as far as the New York judge was concerned, preceded the trial date in the non-exclusive English forum provided by clause 13(b). I would therefore agree with the judge and dismiss this appeal.

I agree with the result proposed by my Lords and with their reasons.