Masri v Consolidated Contractors International Company Sal & Anor

This appeal involves the question whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing proceedings abroad seeking to re-litigate matters which have been decided by the English court.

The background to the present appeal is set out in Masri v Consolidated Contractors International Co SAL [2008] EWCA Civ 303 (April 4, 2008), and I repeat here what is necessary for this appeal. Mr Masri succeeded in an action in the Commercial Court in London in proving that he had a 10% interest in the judgment debtors’ own 10% interest in an oil concession for the exploitation of an oil field in the Yemen. He obtained judgment in the sum of about US$55 million against the appellants, Consolidated Contractors International Company SAL (“CCIC”) and Consolidated Contractors (Oil & Gas) Company SAL (“CCOG”), but they have not paid any part of the judgment debt, and have made it clear that they will resist payment.

CCOG is incorporated in Lebanon, and its claim to have a domicile in Greece for the purposes of the Brussels I Regulation was rejected in the April 4, 2008 judgment. CCIC is also a Lebanese company, but it is common ground that it also has a domicile in Greece. CCOG and CCIC are part of a substantial group (the CCC group) based in the Lebanon. The group was founded, with others, by Mr Said Khoury. Other members of the group include Consolidated Contractors Group SAL (Holding Company) (“CC Holding”), another Lebanese company, and Consolidated Contractors International (UK) Limited (“CCUK”), an English company.

Mr Masri originally brought two actions in England against members of the CCC group. Ultimately the defendants were (1) CCUK; (2) Mr Khoury; (3) CC Holding; (4) CCIC; and (5) CCOG. After jurisdictional challenges, CCOG and CCIC submitted to the jurisdiction of the English court by appearing and defending the case on the merits. In July 2006 Gloster J held that CCIC and CCOG were liable to Mr Masri. The judge dismissed Mr Masri’s claims against Mr Khoury personally and against CCUK and CC Holding. In March 2007 she gave judgment on quantum.

In April 2007 CCOG and CCIC brought an action in the Yemen for a declaration that they were not liable to Mr Masri. By application notice in the existing proceedings issued on May 14, 2007, Mr Masri applied for an order that the judgment debtors be prohibited from commencing or pursuing proceedings in the courts of any other jurisdiction, including in particular the courts of Yemen, relating to matters already determined in these proceedings, and that they be ordered to discontinue the proceedings brought in the Yemen. The ground was that the proceedings commenced in the Yemen by the judgment debtors were vexatious and oppressive, and were an attempt to re-litigate issues determined in the English court and/or to evade the judgment of the English court, and that it was in the interest of justice to grant an order.

On May 25, 2007, following an inter partes hearing, HH Judge Mackie QC ordered that the judgment debtors were not to commence or continue proceedings against Mr Masri relating to the 1992 agreement (under which Mr Masri had acquired his rights) or the parties’ rights and obligations thereunder in any courts other than the English courts or EU courts, including in particular the proceedings in the Yemen. The judgment debtors were required by June 4, 2007 to discontinue the Yemeni proceedings.

The Yemeni proceedings were discontinued following the grant of the injunction. Sir Henry Brooke, acting as a judge of the Court of Appeal, gave permission to appeal from Judge Mackie QC’s order on condition that the judgment debtors complied with all costs orders to date (which they did). Although the Yemeni proceedings have been discontinued this appeal has proceeded on the basis that it is not academic since the judgment debtors may wish to bring further proceedings there or elsewhere. They have also brought proceedings in Greece and the Lebanon for declarations that the English judgment is not enforceable, but these proceedings have not been the subject of applications for anti-suit injunctions.

The essence of Judge Mackie QC’s decision was that jurisdiction to grant the injunctions was established because the application was designed to protect the underlying action. No additional jurisdictional hurdle was required. Commencing proceedings for the collateral purpose of creating a ground of objection to enforcement was not legitimate where the proceedings are duplicative and could not possibly succeed except by contradicting the English judgment. What the judgment debtors were doing was seeking to have decided instead in Yemen something which they were obliged to have decided in England. The judge rejected the judgment debtors’ evidence that the real object of their action in the Yemen was to protect their rights under the Production Sharing Agreement in case the effect of the English judgment was to effect a forbidden assignment of their rights. The injunction was worldwide because the defendants would not say what their intentions were as regards seeking to bring proceedings in other countries. He refused to insert a proviso permitting the judgment debtors to come back to the court should they wish to reformulate their Yemeni proceedings in order to safeguard their rights under the Production Sharing Agreement. His reason was that he did not believe that the point on the Production Sharing Agreement was a legitimate reason for bringing the proceedings and he did not wish to dignify it further by agreeing to such a proviso.

The appeal was most elaborately, and attractively, argued by Mr Alexander Layton QC for the judgment debtors and by Mr Simon Salzedo for Mr Masri.

The court may only grant an anti-suit injunction against a person who is outside the jurisdiction if it has in personam jurisdiction to do so. The better view is that a claim for a non-contractual anti-suit injunction is a claim to enforce a substantive equitable right not to be vexed by litigation abroad. But whether or not a non-contractual anti-suit injunction enforces a substantive equitable right, a claim for an anti-suit injunction is a separate claim based on a separate cause of action, and is a different cause of action from the underlying claim with which the action is concerned. Consequently from the point of view of international jurisdiction (both under the Brussels I Regulation and under CPR 6.20), the anti-suit injunction should be regarded as a separate substantive claim over which jurisdiction must be separately established. This is not affected by the fact that a claim for an anti-suit injunction may be made by an application notice in existing proceedings. Both under the Brussels I Regulation and under CPR 6.20 amendments which add a new cause of action are precluded unless jurisdiction over them can be separately established.

By virtue of Article 2 of the Brussels I Regulation CCIC must be sued in Greece, the country of its domicile, unless some other basis of jurisdiction is established: cf Case C-159/02 Turner v Grovit [2004] ECR I-3565. There is no jurisdictional basis under the Regulation for the anti-suit injunction. Although Case C-391/95 Van Uden v Deco Line [1998] ECR I-7091, at [19]-[22] and Case C-99/96 Mietz v Intership Yachting Sneek BV [1999] ECR I-2277, at [40]-[41] establish that the court with jurisdiction over the underlying claim has a form of “parasitic” or “ancillary” jurisdiction to grant provisional or protective measures, an interim anti-suit injunction would not be treated as a merely ancillary matter, nor as provisional or protective.

There is no jurisdiction over CCOG because the anti-suit injunction must be treated as a separate claim for a separate cause of action (even if made by application notice), and it does not fall within any available head of CPR 6.20. If (contrary to CCOG’s principal submission) the anti-suit injunction is not based on an underlying substantive equitable cause of action, CPR 6.20 does not apply to it at all, as CPR 6.20 can only allow the court to permit service out of the jurisdiction of claims for substantive relief.

CCIC’s submission to the court’s jurisdiction in respect of the breach of contract claim does not found jurisdiction in respect of any fresh anti-suit claim under Article 24 of the Brussels I Regulation. CCIC’s submission was a submission only to the court’s jurisdiction to try the breach of contract claims against it as formulated in the Amended Consolidated Claim Form, and not any new and subsequent substantive claims for an anti-suit injunction.

The court should not extend its ancillary jurisdiction, where it is now known that the court obtained jurisdiction on a false basis. Jurisdiction was obtained against CCIC under Article 6(1) on the basis that CCUK was the anchor defendant, and against CCOG under CPR 6.20(3) (as a necessary or proper party to a claim against CCUK). But it was subsequently decided by the Commercial Court that CCUK was not a party to the 1992 Agreement under which Mr Masri’s rights arose. Although CCIC submitted to the jurisdiction of the court to try the claims (after the dismissal of CCUK’s application for summary judgment and the later joinder of CCIC together with CCUK in the same action on January 13, 2006) CCIC had no real choice if it was not to have default judgment entered against it.

CCOG’s submission to the jurisdiction of the court for the purposes of the trial of the breach of contract action does not give jurisdiction for the purposes of the anti-suit injunction. Its submission was “to try the claim” only (see, by analogy, CPR Part 11), and occurred by reference only to the existing claims formulated in the Amended Claim Form of January 19, 2006. CCOG’s submission was no more than the usual submission that occurs in any case where a defendant, who has disputed and lost a jurisdictional challenge, contests the claim on the merits because it does not wish default judgment to be entered. That submission cannot comprise a submission to the court’s jurisdiction to advance a wholly new substantive claim for an anti-suit injunction after judgment: Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1, at [50].

International comity dictates a need for judicial deference in the international context, and an injunction to restrain foreign proceedings is only to be granted in exceptional cases. It is contrary to principle for an injunction to be granted solely on the ground that it is sought to restrain the re-litigation elsewhere of a matter which has already been decided in England. It is a matter for the courts of the relevant country to decide what the effect of the English judgment on liability should be: The Western Regent [2005] EWCA Civ 985, [2005] 2 Lloyd’s Rep 359, at [50], [66]. It is not sufficient that the foreign litigation ignores, or seeks to obtain a result contrary to, the judgment of the English court: ED & F Man (Sugar) Ltd v Haryanto (No. 2) [1991] 1 Lloyd’s Rep 429, 437-438. It is a matter for the courts before which enforcement may be sought to determine, under their own law of enforcement, whether enforcement should be granted: Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Refinery AD [2003] 1 Lloyd’s Rep 1, at [201]-[208]. Steps which are otherwise legitimate under Yemeni law relating to the enforcement of judgments, including steps to prevent enforcement, should not, in principle, be restrained, at least in the absence of evidence that (a) Mr Masri is the subject of oppression, and (b) the case is exceptional.

The judge failed to take into account that the jurisdiction is to be exercised exceptionally and in accordance with principles of comity. Nor did he take into account the fact that an anti-suit injunction is at least an indirect interference with the exercise of jurisdiction by the relevant foreign court, and that particular restraint is therefore necessary. He failed to take into account the fact that jurisdiction had been obtained wrongly, on the basis of an assertion that CCUK was liable.

There was no basis for extending it to any country outside Yemen. In any event, it should also have excluded the non-EU contracting states to the Lugano Convention. A provision for liberty to apply should have been included.

Where the English court has international jurisdiction over the substance of the proceedings, it also has international jurisdiction to grant ancillary orders in those proceedings on both a pre- and post-judgment basis (Masri v Consolidated Contractors International Co SAL [2008] EWCA Civ 303) and that principle applies to the grant of an anti-suit injunction where the party enjoined commences proceedings in an alternative forum. In such a case the anti-suit injunction is not based on any underlying cause of action, other than the substantive cause of action behind the English proceedings, and it does not generally involve separate proceedings over which jurisdiction has to be separately established. It is not a pre-condition of an application, based upon the protection of the court’s own proceedings and its jurisdiction to prevent unconscionable or vexatious behaviour between litigants who are before it in substantive proceedings, that there be a substantive legal or equitable right: South Carolina Insurance v Assurantie Maatschappij “De Zeven Provincien” NV [1987] AC 24, 40; ED & F Mann (Sugar)Ltd v Haryanto (No. 2) [1991] 1 Lloyd’s Rep 429, 439; Dicey, Morris & Collins, Conflict of Laws (14th ed. 2006) (“Dicey”), para 12-069.

International jurisdiction over the main proceedings against parties domiciled in a Brussels I Regulation State carries with it jurisdiction to grant any ancillary orders in those proceedings: Case C-391/95 Van Uden v Deco-Line [1998] ECR I-7091 and Case C-99/96 Mietz v Intership Yachting Sneek BV [1999] ECR I-2277, as applied in Masri v Consolidated Contractors International Co SAL [2008] EWCA Civ 303, at [97]. The ancillary order need not be strictly provisional or temporary. If contrary to that submission, it is a necessary requirement that the injunction be an interim or provisional measure, then the condition is satisfied in the present case. An anti-suit injunction in an alternative forum case is always subject to an implicit liberty to apply and to discharge if the foreign proceedings contemplated cease to be oppressive: Eras EIL Actions [1995] 1 Lloyd’s Rep 64.

The English court did not assume jurisdiction on a false basis. The claim against CCUK was arguable at the time that jurisdiction was determined. CCUK failed in an application for summary judgment. The connection between the various claims is not falsified because one or more of the claims is ultimately dismissed.

CCOG had been served under CPR 6.5(5) with the application notice for the anti-suit injunction in England, by service upon its English solicitors retained for the purposes of the English proceedings. There was therefore no question of Mr Masri having to satisfy the test for permission to serve out under CPR 6.20. In any event, CCOG’s submission was a general one.

An overlap of issues between English litigation and a foreign claim is something which raises prima facie a case of vexatious conduct. The fact that the judgment debtors are seeking to re-litigate in a foreign jurisdiction matters which are already res judicata by reason of an English judgment can be a sufficient ground for the grant of an anti-suit injunction.

There was no error of principle. The judgment debtors’ own initial explanation for the Yemeni proceedings (given through counsel) was that their purpose was to assist them in resisting enforcement of the judgment. The additional further purpose (to avoid assignment problems under the Production Sharing Agreement) was rejected by the judge and has not been revived on the appeal.

Mr Masri accepts that Contracting States to the Lugano Convention, as well as Brussels I Regulation States, should be excluded from the scope of the injunction. But the injunction should not be limited to the Yemen, because the judgment debtors have shown that they intend to take all possible steps in the world to resist compliance with the English judgment.

For reasons on which I will expand, in my judgment the English court has 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. That power is of course a discretionary one, to be exercised in accordance with the requirements of international comity.

The starting point is that an anti-suit injunction binds only the party enjoined, in personam, and is effective only in so far as that party is amenable to the jurisdiction of the English courts so that the order can be enforced against him: Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] A.C. 871, 892, per Lord Goff of Chieveley; Turner v Grovit [2001] UKHL 65, [2002] 1 W.L.R. 107, at [23], per Lord Hobhouse; Donohue v Armco Inc [2001] UKHL 64, [2002] 1 Lloyd’s Rep. 425, at [19], per Lord Bingham.

Thus in Turner v Grovit [2001] UKHL 65, [2002] 1 WLR 107, at [22]-[23] Lord Hobhouse confirmed:

“The power … is one which had historical origins in the English legal system and the relationships which once existed between various different courts and the limited remedies which they were variously able to grant. It had however been recognisably established by 1834 (Lord Portarlington v Soulby (1834) 3 My & K 104, 108) and described as being grounded not upon ‘any pretension to the exercise of judicial… rights abroad’ but upon the fact that the party being restrained is subject to the in personam jurisdiction of the English court. …

… When an English court makes a restraining order, it is making an order which is addressed only to a party which is before it. The order is not directed against the foreign court: Lord Goff of Chieveley, Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] A.C. 871, 892. The order binds only that party, in personam, and is effective only in so far as that party is amenable to the jurisdiction of the English courts so that the order can be enforced against him: ‘an injunction will only be issued restraining a party who is amenable to the jurisdiction of the court, against whom an injunction will be an effective remedy.’ ”

Does the English court have in personam jurisdiction over the judgment debtors to grant the anti-suit injunction?

The best view, the judgment debtors say, is that a claim for a non-contractual anti-suit injunction is a claim to enforce a substantive equitable right not to be vexed by litigation abroad. The essence of the judgment debtors’ argument is that a claim for an anti-suit injunction is a separate claim based on a separate cause of action, which must in turn be based on a substantive legal or equitable right and for which an independent basis of jurisdiction must be found under the Brussels I Regulation or CPR 6.20. They go on to argue that there is no basis under the Brussels I Regulation or CPR 6.20 for the assertion of jurisdiction in this case, and, in particular, the judgment debtors’ submission on the merits of the case does not give the court jurisdiction to make the order, and the order was not a provisional or protective measure so as to give jurisdiction over CCIC in the absence of the English court’s jurisdiction over the substance of the case.

In my judgment the answer to these points is, first, the type of anti-suit injunction granted in these proceedings is not one which is founded in English law on a cause of action separate from the claims in the main proceedings which gave rise to the judgment debt. Second, the claim for an anti-suit injunction did not involve CCIC being “sued” for the purposes of the Brussels I Regulation, nor did it involve “a claim” for the purposes of the heads of jurisdiction in CPR 6.20. Third, the judgment debtors’ submission to the jurisdiction gave the English court power to make any incidental orders in the litigation, irrespective of whether (in the case of CCIC) the order was a provisional or protective measure.

Is the claim for an anti-suit injunction a new claim which must satisfy its own jurisdictional criteria? The judgment debtors argue that an application for an anti-suit injunction, including an interim injunction, has a substantive effect and must be supported by a substantive cause of action.

The development of the anti-suit injunction began in the early 19th century, but the question whether a claim for an anti-suit injunction was a claim separate from the claim in the action only arose in the aftermath of Lord Diplock’s speech in The Siskina [1979] AC 210.

In The Siskina cargo-owners had a substantial claim against the owners of the Siskina for failing to carry goods to Saudi Arabia. The English court had no jurisdiction over the substantive claim, which might be determined in Genoa (under an exclusive jurisdiction clause in the bills of lading) or by counterclaim in Cyprus (where the shipowners had arrested the cargo). The Siskina was owned by a one-ship Panamanian company, and had become a total loss. The insurance moneys were payable by London underwriters. The question was whether the English court could authorise service abroad under the then RSC Ord 11, r 1(1)(l) (“injunction … ordering the defendant to .. refrain from doing anything within the jurisdiction ..”) of a claim for a Mareva injunction restraining disposal of the insurance proceeds. By a majority the Court of Appeal held that the court had jurisdiction to grant the injunction: [1979] AC at 224. The House of Lords reversed the decision of the Court of Appeal in a decision which Lord Denning described as the most disappointing reversal in his career: The Due Process of Law (1980), at 141. The actual decision has been reversed by statute (Civil Jurisdiction and Judgments Act 1982, section 25(1)), but it remains an influential, and controversial, decision, and has had considerable effect on the development of the law of anti-suit injunctions.

Lord Diplock, in a speech with which all the other members concurred, said ([1979] AC at 256):

“… A right to obtain an interlocutory injunction is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment by the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction.

Since the transfer to the Supreme Court of Judicature of all the jurisdiction previously exercised by the court of chancery and the courts of common law, the power of the High Court to grant interlocutory injunctions has been regulated by statute. That the High Court has no power to grant an interlocutory injunction except in protection or assertion of some legal or equitable right which it has jurisdiction to enforce by final judgment, was first laid down in the classic judgment of Cotton L.J. in North London Railway Co. v. Great Northern Railway Co. (1883) 11 Q.B.D. 30, 39-40, which has been consistently followed ever since.”

That general principle has been re-affirmed several times by the House of Lords and the Privy Council: Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corporation Ltd. [1981] AC 909, 979-980, 992, 994-995; British Airways Board v Laker Airways Ltd [1985] AC 58http://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1984/7.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1984/7.htmlhttp://www.bailii.org/cgi-bin/redirect.cgi?path=/uk/cases/UKHL/1984/7.html, 80-81; Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 341, 360-361; Mercedes Benz AG v Leiduck [1996] AC 284, 298 (PC).

But doubts have been expressed in the House of Lords about the width of the principle. In South Carolina Insurance Co. v Assurantie Maatschappij “De Zeven Provincien” NV [1987] AC Lord Goff of Chieveley (with whom Lord Mackay of Clashfern agreed) said (at 44):

“I am reluctant to accept the proposition that the power of the court to grant injunctions is restricted to certain exclusive categories. That power is unfettered by statute; and it is impossible for us now to foresee every circumstance in which it may be thought right to make the remedy available.”

In Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334 Lord Browne-Wilkinson (with whom Lord Keith of Kinkel and Lord Goff of Chieveley agreed) shared those doubts and reserved the question for consideration when it arose, and in Mercedes Benz AG v Leiduck [1996] AC 284 (PC) Lord Nicholls said in his dissenting opinion (at 308) that these were

“highly persuasive voices that the jurisdiction to grant an injunction, unfettered by statute, should not be rigidly confined to exclusive categories by judicial decision. The court may grant an injunction against a party properly before it where this is required to avoid injustice, just as the statute provides and just as the Court of Chancery did before 1875. The court habitually grants injunctions in respect of certain types of conduct. But that does not mean that the situations in which injunctions may be granted are now set in stone for all time. The grant of Mareva injunctions itself gives the lie to this. As circumstances in the world change, so must the situations in which the courts may properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice. Injustice is to be viewed and decided in the light of today’s conditions and standards, not those of yester-year.”

Prior to the Judicature Acts, the anti-suit injunction generally required the applicant to establish either that there was “vexatious harassment” or that the respondent was proceeding abroad in a manner which was contrary to equity and good conscience: Carron Iron Co v Maclaren (1855) 5 HLC 415, at 436-437, per Lord Cranworth LC; Kerr, Injunctions in Equity (1867), at p 134. After the Judicature Acts, from McHenry v Lewis (1883) LR 22 Ch D 387 and Hyman v Helm (1883) 24 Ch D 531, and especially in what became (until the explosion in the use of the anti-suit injunction from the 1980s) the leading case, Cohen v Rothfield [1919] 1 KB 410, the essential basis for the injunction was the vexatious or oppressive conduct of the respondent. That was the test even in cases in which the applicant relied on a contract not to sue in the foreign court, as in The Tropaioforos (No 2) [1962] 1 Lloyd’s Rep 410, at 418, and Settlement Corp v Hochschild [1966] Ch 10, at 15, 19.

Soon after The Siskina the question arose as to how Lord Diplock’s categorisation applied to anti-suit injunctions. In Castanho v Brown & Root (UK) Ltd [1981] AC 557, Lord Scarman said (at 573) in a speech with which all the other members (including Lord Diplock) concurred:

“The considerable case law to which your Lordships have been referred does not, in terms, express any limitation upon the sort of cases in which it may be appropriate to exercise the jurisdiction. Counsel for the plaintiff however, submitted that it is to be found to have been exercised only in two classes of case: (1) ‘lis alibi pendens,’ where the object is to prevent harassment: he cited as examples The Christiansborg (1885) 10 P.D. 141, with especial reference to the judgment of Baggallay L.J. at pp. 152-153, The Hagen [1908] P. 189, 2002 and The Janera [1928] P 55: and (2) where there is a right justiciable in England, which the court seeks to protect.”

and, after referring to The Siskina, Lord Scarman said:

“No doubt, in practice, most cases fall within one or other of these two classes. But the width and flexibility of equity are not to be undermined by categorisation. Caution in the exercise of the jurisdiction is certainly needed: but the way in which the judges have expressed themselves from 1821 onwards amply supports the view for which the defendants contend that the injunction can be granted against a party properly before the court, where it is appropriate to avoid injustice.”

The actual decision in Castanho v Brown & Root (UK) Ltd, that an anti-suit injunction may be granted on the ground that England is the forum conveniens, is no longer good law, and has been replaced by a return to the formula that the foreign proceedings must be vexatious or oppressive: Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] A.C. 871; Airbus Industrie v Patel [1999] 1 A.C. 119. But there is no reason to doubt that what Lord Scarman said on the nature of the injunctive power still represents the law. The effect of that part of his speech is that where the party is before the court an anti-suit injunction is not a separate claim requiring its own basis of jurisdiction.

In British Airways Board v Laker Airways Ltd [1985] A.C. 58 Lord Diplock agreed with that part of Lord Scarman’s speech. He referred to the relevant passages in his speech in The Siskina and said (at 81):

“This, being said in the context of an application for a Mareva injunction, omitted to mention the type of case that is of comparatively rare occurrence in the English courts in which the plaintiff seeks against a person amenable to the jurisdiction of the English High Court an injunction to restrain the defendant from bringing suit against him in a foreign court upon the ground that the plaintiff is entitled under English law to a legal or equitable right not to be sued in that foreign court by that person upon the cause of action that is the subject of such proceedings. A right not to be sued upon a particular cause of action in a particular foreign court by the person against whom the injunction is sought may be contractual in origin. A common example of this is an exclusive jurisdiction clause in a contract. Furthermore, if under English law a defence would be available to the injunction-seeker, that defence may be given anticipatory effect as a right not to be sued that is enforceable by injunction in an action for a declaration of non-liability. Of such defences it is not difficult to point to a number of examples most of them equitable in historical origin, such as estoppel in pais (which was also a defence at common law), promissory estoppel, election, waiver, standing by, laches, blowing hot and cold - to all of which the generic description of conduct that is ‘unconscionable’ in the eye of English law may be given. I would accordingly agree, as I did in Castanho’s case [1981] A.C. 557, with the qualification to the statement of principle in the stark terms in which I expressed it in the Siskina case [1979] A.C. 210, 256 that was added by Lord Scarman in Castanho’s case …”

Lord Scarman said (at 95), in relation to “single forum” cases, i.e. cases where there is no remedy in the English court in respect of the cause of action which, if the facts be proved, is recognised and enforceable by the foreign court,

“… the power of the English court to grant the injunction exists, if the bringing of the suit in the foreign court is in the circumstances so unconscionable that in accordance with our principles of a ‘wide and flexible’ equity it can be seen to be an infringement of an equitable right of the applicant. The right is an entitlement to be protected from a foreign suit the bringing of which by the defendant to the application is in the circumstances unconscionable and so unjust. This equitable right not to be sued abroad arises only if the inequity is such that the English court must intervene to prevent injustice. Cases will, therefore, be few: but the jurisdiction exists and must be sustained …”

The effect of these speeches is that what is being said is that in jurisdiction agreement cases and single forum cases the person seeking an anti-suit injunction is asserting a right not to be sued abroad. This involves fitting anti-suit injunctions (at any rate in single forum cases) into the mould of The Siskina by the use of a right based on unconscionable conduct.

Since Lord Diplock’s speech in British Airways Board v Laker Airways Ltd, the vexation/oppression test has often been subsumed within the category of unconscionability. Thus in South Carolina Insurance Co. v Assurantie Maatschappij “de Zeven Provincien” N.V. [1987] A.C. 24 Lord Brandon said (at 41):

“It is difficult, and would probably be unwise, to seek to define the expression ‘unconscionable conduct’ in anything like an exhaustive manner. In my opinion, however, it includes, at any rate, conduct which is oppressive or vexatious or which interferes with the due process of the court.”

But it does not follow that even in alternative forum cases it is necessary for the applicant to establish a separate right not to be sued, in the sense of a cause of action based on a legal or equitable right not to be sued. Hobhouse LJ pointed out in The Jay Bola [1997] 2 Lloyd’s Rep 279, 286, that the right to apply for an injunction was not a “cause of action” of the same character as the right to sue for damages for breach of contract or for tort. It was an application for “an equitable remedy to protect the plaintiff against the consequences of unconscionable conduct.”

The distinction was made by Lord Brandon in South Carolina, in a speech with which all other members concurred (at 39-41):

“… The first basic principle is that the power of the High Court to grant injunctions is a statutory power conferred on it by section 37(1) of the Supreme Court Act 1981, which provides that ‘the High Court may by order (whether interlocutory or final) grant an injunction in all cases in which it appears to the court to be just and convenient to do so.’ … The second basic principle is that, although the terms of section 37(1) of the Act of 1981 and its predecessors are very wide, the power conferred by them has been circumscribed by judicial authority dating back many years. … The effect of these authorities [The Siskina, Castanho v Brown & Root (UK) Ltd, and British Airways Board v Laker Airways Ltd], so far as material to the present case, can be summarised by saying that the power of the High Court to grant injunctions is, subject to two exceptions to which I shall refer shortly, limited to two situations. Situation (1) is when one party to an action can show that the other party has either invaded, or threatens to invade, a legal or equitable right of the former for the enforcement of which the latter is amenable to the jurisdiction of the court. Situation (2) is where one party to an action has behaved, or threatens to behave, in a manner which is unconscionable. The third basic principle is that, among the forms of injunction which the High Court has power to grant, is an injunction granted to one party to an action to restrain the other party to it from beginning, or if he has begun from continuing, proceedings against the former in a foreign court. …

The latter form of injunction may be granted in such circumstances as to constitute an exception to the second basic principle stated above. This may occur where one party has brought proceedings against another party in a foreign court which is not the forum conveniens for the trial of the dispute between them, as that expression was defined and applied in MacShannon v Rockware Glass Ltd [1978] AC 795. In such a case the party who has brought the proceedings in the foreign court may not, by doing so, have invaded any legal or equitable right of the other party, nor acted in an unconscionable manner. The court nevertheless has power to restrain him from continuing his foreign proceedings on the ground that there is another forum in which it is more appropriate, in the interests of justice, that the dispute between the parties should be tried. …

The power of the court to grant Mareva injunctions may also, before it was statutorily recognised, have been a further exception to the second basic principle stated above. …”

What Lord Brandon said there about forum conveniens is no longer good law, but what he said applies to alternative forum cases, where the applicant complains of unconscionable conduct or vexation/harassment. The effect of what he says about what he describes as “situation (2)”, namely unconscionability, and what he says about forum conveniens (which must now be transposed to vexation/oppression), is that in such cases there is no need for the applicant to establish a threatened invasion of a legal or equitable right, or a separate cause of action. See also Airbus Industrie v Patel [1999] 1 AC 119, 134, per Lord Goff of Chieveley, who describes both alternative forum and single forum cases without reference to legal or equitable rights.

ED & F Man (Sugar) Ltd v Haryanto (No 2) [1991] 1 Lloyd’s Rep. 429 is consistent with Lord Brandon’s approach. Neill LJ and Mann LJ accepted that where the applicant for an anti-suit injunction relied on unconscionable conduct on the part of the respondent, the applicant did not have to identify a legal or equitable right not to be sued. Neill LJ said (at 437):

“For my part I find it difficult to identify any legal or equitable rights of Man, apart from their rights under the arbitration clause, which were infringed by Mr. Haryanto when he brought his proceedings in Indonesia, or would be infringed by enforcement proceedings in other jurisdictions. It is sufficient, however, to consider the matter, as did the Judge, on the basis of unconscionability.”

Mann LJ said (at 439), after referring to Lord Brandon’s speech in South Carolina said:

“In my judgment the learned Judge was correct in dismissing legal and equitable rights from his consideration. I turn to behaviour, actual or threatened, in a manner which is unconscionable in English law. ..”

In Mercedes Benz AG v Leiduck [1996] AC 284 (PC) Lord Nicholls said in his dissenting opinion (at 310):

“For instance, a writ may properly be issued containing nothing materially more than a claim for an injunction to restrain a defendant from continuing proceedings abroad on the ground that this would be unconscionable: see British Airways Board v Laker Airways Ltd. [1985] A.C. 58, 81, 95; [1984] Q.B. 142, 147. In such a case, the underlying right, if sought to be identified, can only be defined along the lines that a party has a right not to be sued abroad when that would be unconscionable. This formulation exemplifies the circular nature of the discussion.”

Some judges have spoken in terms of a right not be sued abroad, even in alternative forum cases. There can be no objection to the expression “right not to be sued” if the word “right” is used in the same sense as it is in, for example, “right to obtain disclosure”. The right not to be sued may involve a correlative duty, but it does not necessarily require a separate claim or cause of action any more than the right to obtain disclosure inter partes. In my judgment, on analysis those judges who have spoken, in alternative forum cases, of a right not to be sued, have not been indicating that there need be a separate cause of action, legal or equitable, but have simply been using the word “right” in the sense of the thing which gives rise to a remedy.

Thus in Turner v Grovit [2001] UKHL 65, [2002] 1 WLR 107, a case involving vexatious and oppressive litigation by Mr Grovit against Mr Turner in Spain, Lord Hobhouse said (at [25]):

“ … Under English law, a person has no right not to be sued in a particular forum, domestic or foreign, unless there is some specific factor which gives him that right. A contractual arbitration or exclusive jurisdiction clause will provide such a ground for seeking to invoke the right to enforce the clause. The applicant does not have to show that the contractual forum is more appropriate than any other; the parties’ contractual agreement does that for him. Similarly, where as in the present case there has been clearly unconscionable conduct on the part of the party sought to be restrained, this conduct is a sufficiently strong element to support the affected party’s application for an order to restrain such conduct. …”

Other judges may have gone further in requiring a legal or equitable right in all such cases. Thus in Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1, at [42], which was another alternative forum case, Rix LJ said (obiter): “… the threatened conduct must be ‘unconscionable’. It is only such conduct which founds the right, legal or equitable … for the protection of which an injunction can be granted.” See also OT Africa Line Ltd v Magic Sportswear Corp [2005] EWCA Civ 710, at [63], per Rix LJ; Youell v Kara Mara Shipping Co Ltd [2000] 2 Lloyd’s Rep. 102, at [43], per Aikens J.

In some cases it will be necessary to establish a separate claim. For example, where the underlying dispute has nothing to do with England, the only basis of jurisdiction of the English court may, for example, be an English jurisdiction agreement governed by English law. In such a case an independent head of jurisdiction based on a separate cause of action against the foreign respondent may have to established under the Brussels I Regulation or CPR 6.20: e.g. Amoco (UK) Exploration v British American Offshore [1999] 2 Lloyd’s Rep 772; Youell v Kara Mara Shipping Co Ltd [2000] 2 Lloyd’s Rep. 102. So also where the parties have agreed an exclusive English jurisdiction clause, it has been held, for the purposes of the lis alibi pendens provisions of the Brussels Convention, that a claim for an anti-suit injunction is a different cause of action from the underlying claim with which the action is concerned: Toepfer International GmbH v Molino Boschi Srl [1996] 1 Lloyd’s Rep 510, where Mance J said (at 513) that the claim for the anti-suit injunction (where the foreign proceedings were in breach of an English arbitration agreement) did not, for the purposes of what is now Article 27 of the Brussels I Regulation, involve the same of cause of action as the substantive proceedings in Italy.

Single forum cases (which, as I have said, are cases where there is no remedy in the English court in respect of the cause of action being maintained abroad) may raise more difficult problems. In neither British Airways Board v Laker Airways Ltd nor in Midland Bank plc v Laker Airways Ltd [1986] QB 689 (a rare decision in which an injunction was granted in a single forum case) did a question of personal jurisdiction arise. Although Laker Airways was a Jersey company, the defendants included its English liquidators. I accept the submission for Mr Masri that it would be a highly unusual case in which the English court would grant an anti-suit injunction in a single forum case against a non-English party, and (I would add) an even rarer case in which it would have jurisdiction to do so.

Where a claim for an anti-suit injunction is made on the basis of an exclusive English jurisdiction clause, or where it is made in a single forum case, the claim for the final injunction may be made in the claim form, as it was in British Airways Board v Laker Airways Ltd [1985] A.C. 58, where the writs by British Airways and British Caledonian sought declarations of non-liability and injunctions to restrain the US anti-trust actions: [1984] QB 142, at 147; and in Donohue v Armco Inc [2001] UKHL 64, [2002] 1 Lloyd’s Rep. 425, where Donohue’s action in England was for an anti-suit injunction and for damages against Armco for breach of the exclusive jurisdiction clause; but there was no other substantive remedy sought, such as a declaration on non-liability: see [1999] 2 Lloyd’s Rep 649, at 655.

In alternative forum cases the application for an anti-suit injunction will normally be made (as it was in this case) by way of an application in existing proceedings: Eras EIL Actions [1995] 1 Lloyd’s Rep 64; Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1, at [59], per Rix LJ; Gee, Commercial Injunctions (5th ed. 2004), para 14.031. As long ago as 1867 it was said that if the court is in full possession of the cause, or a decree has been made, an injunction will be granted on motion in the suit, but if the court is not in possession of the matter, an action must be brought: Kerr, Injunctions in Equity (1867), at 160.

That does not in itself determine whether the court has jurisdiction because CPR 6.20 applies to applications and application notices as it applies to claims and claim forms: CPR 6.18. But this cannot mean that a separate head of jurisdiction must be identified for every application notice in existing proceedings. As a matter of English law, once the court has jurisdiction over the substance of the case, it has jurisdiction to make ancillary orders, including anti-suit injunctions to protect the integrity of its process.

The effect of the judgment of this court in Masri v Consolidated Contractors International Co SAL [2008] EWCA Civ 303 (April 4, 2008) is that the English court seised of the substance of a dispute has the power to grant ancillary orders in that dispute, both prior to judgment and after judgment, and irrespective of whether the defendant or judgment debtor is domiciled in a Brussels I Regulation State: at [92]-[107], and addendum.

It is also the effect of the April 4, 2008 judgment that such ancillary orders are not limited to “protective or provisional measures” within the meaning of Article 31 of the Brussels I Regulation (formerly Article 24 of the Brussels Convention). In the course of my judgment I said (at [96]-[97]) that in Case C-391/95 Van Uden Maritime BV v Firma Deco-Line [1998] ECR I-7091:

“The European Court distinguished between cases in which the court which made the order had jurisdiction over the substance of the case under the Brussels Convention, and those in which it did not. Where the national court had jurisdiction over the substance of the case, the European Court held (paras 19, 21 and 22) that that court also had jurisdiction to order provisional or protective measures, without that jurisdiction being subject to any further conditions, such as that the order must be capable of enforcement in the State where the order is made. The same point is made in [Case C-99/96 Mietz v Intership Yachting Sneek BV [1999] ECR I-2277] at paras [40]-[41].

It follows that even if CCOG were domiciled in Greece, the English court as the court having jurisdiction to hear the substance of the case would have power to order provisional or protective measures. The effect of these decisions is that the court with jurisdiction over the substance of the case has jurisdiction to grant any ancillary order. There is no reason to doubt that that includes orders both pre-judgment and post-judgment ….”

That decision concerned a receivership order, a freezing injunction, and an order for an affidavit of assets. In my judgment, even where the defendant is domiciled in a Brussels I Regulation State, whether the English court, as the court with jurisdiction over the substance of the case, has power to grant an ancillary order does not depend upon whether the injunction is a provisional or purely interim measure for the purposes of Article 31.

Both Case C-391/95 Van Uden Maritime BV v Firma Deco-Line 1998] ECR I-7091 and Case C-99/96 Mietz v Intership Yachting Sneek BV [1999] ECR I-2277 concerned orders for interim payments made by the Netherlands court in favour of Dutch plaintiffs against German defendants in proceedings for “an immediate measure on grounds of urgency” (kort geding procedure under Art 289(1) of the Dutch Code of Civil Procedure). In Van Uden there were arbitral proceedings pending in the Netherlands between the parties, but the Dutch court would (but for the arbitration agreement) have had jurisdiction over the substance of the case under Article 5(1) of the Brussels Convention. In Mietz the German defendant resisted enforcement of the order in Germany on the grounds that (a) the German court lacked jurisdiction over the substance of the case; and (b) the order was not a provisional or protective measure for the purposes of Article 24 of the Brussels Convention.

In each case the European Court was being asked whether the Dutch court had jurisdiction to make the order for interim payment. In each case the European Court ruled on the conditions which had to be fulfilled before a court which did not have jurisdiction over the substance of the case could grant measures which qualified as provisional or protective measures under Article 24. In each case the European Court also ruled that the court with jurisdiction over the substance of the case could grant provisional or protective measures, without any additional conditions such as those applied under Article 24. But it is plain from the context in which the questions were referred that the Court was not being asked to rule upon, and that it did not rule upon, whether the court with jurisdiction over the substance of the case may make orders which are not provisional or protective measures.

To take an elementary example, it cannot be doubted that the court with jurisdiction over the substance may make an order for the production of documents as part of the ordinary process of discovery or disclosure. Such an order would not be a provisional or protective measure, but it is obvious that the court has jurisdiction to make it.

No permanent injunction has been sought in this case. In any event, it seems to me that an interim anti-suit injunction qualifies as a protective measure. In Case C-261/90 Reichert v Dresdner Bank AG [1992] ECR I-2149, at [34]-[35], the European Court described (in the context of Article 24 of the Brussels Convention) provisional and protective measures as measures which “were intended to preserve a factual or legal situation so as to safeguard rights…” The anti-suit injunction in this case was designed to protect the underlying rights of Mr Masri, and the judgment which he had obtained, and also to protect the integrity of the English proceedings to which the judgment debtors had submitted. Although there was no express liberty to apply it was not a final injunction, and therefore there was and remains an implied liberty to apply in relation to it: Eras EIL Actions [1995] 1 Lloyd’s Rep 64, at 74.

Nor do I consider that there is anything in Case C-159/02 Turner v Grovit [2004] ECR I-3565 which justifies the submission that the only court which may restrain a domiciliary of a Brussels I Regulation State from litigating abroad should be the court of its domicile. That ruling was concerned only with the propriety of enjoining proceedings in a Regulation State.

The procedural background is complex, and for present purposes (and at the risk of over-simplification) it is only necessary to point out that the English court assumed jurisdiction over the judgment debtors primarily because they were co-defendants with CCUK. The applicable head of jurisdiction for CCIC was, because it had a domicile in Greece, Article 6(1) of the Brussels I Regulation as a co-defendant to an action against a UK domiciliary, and the applicable head of jurisdiction for CCOG was CPR 6.20(3) as a necessary or proper party to an action brought against CCUK. There was also an issue as to whether the English court also had jurisdiction over CCIC under Article 5(1).

The submission by CCOG and CCIC to the jurisdiction followed the addition of all defendants into the same claim form by amendment on January 13, 2006. Until then CCOG and CCIC had challenged (without success) the jurisdiction of the court. CCIC’s primary ground was that it could not be joined in the second action simply by virtue of CCUK being a party to the first action. CCOG’s main point was that England was not the forum conveniens. After the Court of Appeal dismissed the jurisdictional objections (Consolidated Contractors International Co SAL v Masri [2005] EWCA Civ 1436, [2006] 1 WLR 830) the House of Lords gave permission to appeal.

But in January 2006 CCIC was joined in the same action as CCUK, and the claim form in that action was amended on January 19, 2006, without prejudice to CCIC’s accrued time bar defences in respect of claims that had become time barred before January 13, 2006. The appeal to the House of Lords remains pending but CCIC and CCOG submitted to the jurisdiction, and contested the proceedings on the merits. A finding that the contract provision in Article 5(1) also provided an independent basis of jurisdiction over CCIC was determined by Cresswell J in favour of Mr Masri and is still pending in the House of Lords.

What is the effect of that submission? Relying on Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1 and Donohue v Armco Inc [2001] UKHL 64, [2002] 1 Lloyd’s Rep 425, the judgment debtors say that the submission was one limited to the claims then made, and did not extend to the claim for an anti-suit injunction.

In Glencore International AG v Exter Shipping Ltd, ante, the applicant was a company which had used an oil storage facility off Fujairah at which it was discovered that the stocks of oil fell far short of the amount claimed by those who used the facility. The applicant company (and many others) commenced proceedings in England claiming title to the remaining stock and to stock delivered to third parties. The respondents were four foreign shipowners who had claimed or counterclaimed against the applicant in the English proceedings, but who also commenced proceedings in New York against the applicant for an indemnity shortly before judgment was given in one of the English actions. The applicant sought, by way of an application notice, an anti-suit injunction on the basis that the New York proceedings were vexatious.

The shipowners argued that the English court had no jurisdiction to grant the anti-suit injunctions because they had submitted to the jurisdiction only for limited purposes and in respect of limited parties. It was held that the court had jurisdiction to grant the anti-suit injunction because (1) the respondents to the application had submitted to the jurisdiction, by making substantive claims or counterclaims in the actions; and (2) the applicant was a party to the litigation in which they had submitted, and the shipowners had participated in full in the litigation: at [52]-[53]. Rix LJ (at [45]) drew a distinction between the case of a foreign party who invokes the jurisdiction of the English court by claiming here, and the case of a foreign party who is brought to this jurisdiction by answering a claim under CPR 6.20. In the first case the foreign claimant submits himself to the jurisdiction without reservation, and is subject, so far as territorial jurisdiction is concerned, to all the incidents of litigation in this country. But in the second case the defendant can limit his submission to the jurisdiction and prima facie is regarded as doing so on a claim by claim basis. He went on (at [50]), in a passage relied by the judgment debtors on this appeal:

“The case of the foreign defendant who has not invoked the jurisdiction of these courts, however, is different. In such a case, in the absence of a general submission to the jurisdiction (see … The Kapetan Markos [1986] 1 Lloyd’s Rep 211 at 228-229) the general rule is that permission has to be obtained within the four corners of the English long-arm statute for each separate claim made against him: see Holland v Leslie [1894] 2 QB 346 and Waterhouse v Reid [1938] 1 All ER 235, [1938] 1 KB 743.”

In my judgment the decision in Glencore International AG v Exter Shipping Ltd is entirely orthodox and does not assist the judgment debtors. A defendant who submits to the jurisdiction is subject to the incidents of litigation. I accept that both under CPR 6.20 (and its predecessor RSC Order 11, r. 1) and under the Brussels I Regulation, it is not permissible to add by way of amendment additional claims unless the jurisdictional requirements are fulfilled for those claims (including, in the case of CPR 6.20, the obtaining of permission to serve out of the jurisdiction): Dicey, para 11-154; Parker v Schuller (1901) 17 TLR 299; News International v Borgognon (unreported, March 5, 1988); Société Commerciale de Reassurance v Eras International Ltd. [1992] 1 Lloyd’s Rep 570, 612-613; The Jay Bola [1997] 2 Lloyd’s Rep 279, 290; Glencore International AG v Exter Shipping Ltd [2002] EWCA Civ 528, [2002] 2 All ER (Comm) 1, at [50]; Donohue v Armco Inc. [2001] UKHL 64, [2002] 1 Lloyd’s Rep 425, at [21].

Nor does The Kapetan Markos [1986] 1 Lloyd’s Rep 211 assist. It does not decide more than that where a person outside the jurisdiction unconditionally acknowledges service there is a submission to the jurisdiction in respect of all claims comprised in the claim form.

The judgment debtors’ argument based on the Glencore International AG v Exter Shipping Ltd fails because (a) there has been a general submission to the jurisdiction in respect of the claims which were the subject of Gloster J’s judgments and (b) the claim for an anti-suit injunction is not a new claim requiring amendment of the claim form so as to add a new cause of action. The fact that jurisdiction over the judgment debtors was obtained primarily (as CCOG and CCIC say) or in part (as Mr Masri says) by virtue of CCUK’s involvement as a party, and the fact that CCUK was ultimately held not to be liable, affect neither the original assertion of jurisdiction nor the scope of the judgment debtors’ submission.

Nor do I consider that Donohue v Armco Inc [2001] UKHL 64, [2002] 1 Lloyd’s Rep 425 assists the judgment debtors. Armco Inc had commenced proceedings in New York alleging fraud against Mr Donohue and several other companies and individuals. Mr Donohue claimed that the New York proceedings were in breach of an exclusive English jurisdiction clause. The basis of jurisdiction for Mr Donohue’s claim was the contract head of jurisdiction under RSC Order 11, rule 1(1) (see [2002] 1 Lloyd’s Rep at [17]). Other alleged conspirators who were being sued in New York applied to be joined as co-plaintiffs to the English proceedings so that they too could seek anti-suit injunctions.

Lord Bingham (at [18]) recognised that an exclusive jurisdiction agreement gave a cause of action entitling a party to the agreement to seek an anti-suit injunction. But those who were not parties to the exclusive jurisdiction agreement could not be joined to the English proceedings as additional plaintiffs, not only because England was not the natural forum and the New York proceedings were not vexatious or oppressive, but also because the court had no personal jurisdiction over Armco in proceedings by the proposed additional plaintiffs. They could not have obtained permission to serve out of the jurisdiction in independent proceedings, and the amenability of Armco and its associated companies to the jurisdiction of the English court by virtue of their contractual relationship with Mr Donohue did not enable them to take advantage of that relationship to effect service on the solicitors nominated by the Armco companies. The court would not allow them to use Mr Donohue’s action as a vehicle to enter the proceedings when they could have shown no possible ground for doing so in their own right.

This decision does not assist on the question of submission in the present case. Armco was subject to the jurisdiction of the English court in relation to the proceedings by Mr Donohue and (potentially) the other parties to the jurisdiction agreement, but whatever the scope of its submission to those proceedings, it would not have been a submission to claims by other parties.

The judgment debtors say that it is contrary to principle for an injunction to be granted solely on the ground that it is sought to restrain the re-litigation elsewhere of a matter which has already been decided in England. This is because it is a matter for the courts of the relevant country to decide, if need be by reference to their own choice of law rules and any applicable international treaty, what the effect of the English judgment on liability should be (The Western Regent [2005] EWCA Civ 985, [2005] 2 Lloyd’s Rep 359, [50], [66]) and it is not sufficient that the foreign litigation ignores, or seeks to obtain a result contrary to, the judgment of the English court: ED & F Man (Sugar) Ltd v Haryanto (No. 2) [1991] 1 Lloyd’s Rep 429, at 437-438.

This argument is an appeal to considerations of international comity. In modern times the courts have often emphasised the importance of comity in the exercise of the discretion to grant anti-suit injunctions. Although the injunction is directed to the parties it involves an indirect interference with the foreign court, and caution is required before the injunction is granted: see, among many others, Cohen v Rothfield [1919] 1 KB 410, 413, per Scrutton LJ; Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] A.C. 871, 892, per Lord Goff of Chieveley. The litigation in Phillip Alexander Securities and Futures Ltd v. Bamberger [1996] CLC 1757 and in British Airways Board v Laker Airways Ltd [1985] A.C. 58 showed how foreign courts may object to the imposition of an anti-suit injunction by the English court. Comity may be decisive where the English court is asked to grant an anti-suit injunction when the case has no relevant connection with England, since to grant an injunction in such a case may be a breach of international law: Airbus Industrie v Patel [1999] 1 A.C. 119.

I do not accept the judgment debtors’ argument that there is a principle (whether it is expressed as a condition for the exercise of the jurisdiction, or as an aspect of comity, or as an element in the exercise of the discretion) that the English court will not restrain re-litigation abroad of a claim which has already been the subject of an English judgment adverse to the person seeking to re-litigate abroad. It has been established since at least 1837 that the fact that the respondent is seeking to re-litigate in a foreign jurisdiction matters which are already res judicata between himself and the applicant by reason of an English judgment can be a sufficient ground for the grant of an anti-suit injunction.

In Bank of Tokyo v Karoon [1987] AC 45n, at 63, Robert Goff LJ referred to the public interest in the finality of litigation, and said that there were authorities in England and the United States in which courts had granted injunctions restraining persons properly amenable to their jurisdiction from relitigating matters which had already been the subject of a judgment of the court of the forum. He referred to Booth v Leycester (1837) 1 Keen 579 where the plaintiff had failed in a suit before the Court of Chancery in England. He appealed against that judgment. In the meantime, he also instituted proceedings before the Court of Chancery in Ireland raising the same contentions. The defendant applied for an injunction to restrain the Irish proceedings. Lord Langdale MR said (at 580):

“As it appears that these suits were instituted for the same matter in all respects, and there has been an adjudication upon that matter, from which there may, indeed, be an appeal, but which, for the present, must be considered as final, I think I should not be performing my duty, if I permitted the Plaintiff to go on with the proceedings in Ireland. The injunction prayed by this petition must, therefore, be granted.”

It is noteworthy that, citing (among other cases, Booth v Leycester), Kerr on Injunctions from the first edition (as Injunctions in Equity, 1867) to the last (6^th ed. 1925) treated the existence of an English judgment as the primary situation in which injunctions to restrain proceedings abroad would be granted, and dealt with others cases with the introductory words (1st ed. at 156; 6th ed. at 599):

“Even though no decree has been obtained in this country, yet if a suit instituted abroad does not appear so well calculated to answer the ends of justice as the suit here, the Court will restrain the foreign action, imposing, however, terms which it considers reasonable for protecting the party whom it enjoins.”

Counsel for the judgment debtors have subjected the other cases cited in Kerr to an elaborate analysis designed to show that they are distinguishable from this case, particularly because in most of the cases the plaintiff in England was also the plaintiff abroad, and the plaintiff was seeking not to re-litigate the issues pending in England, but was seeking a concurrent remedy abroad. I will not extend this already long judgment by analysing these decisions, because the law on anti-suit injunctions has moved on a great deal since the last edition of Kerr and I doubt whether it is profitable to do more than note that the protection of the jurisdiction of the English court and its judgments by injunction has a long lineage. In my judgment there is no reason to doubt that in appropriate cases the English court may enjoin a foreign defendant against whom there is an English judgment (in proceedings to which the foreign defendant has submitted) from seeking to re-litigate the same issues abroad.

In Bank of Tokyo Ltd. v Karoon [1987] A.C. 45n, at 58, Robert Goff LJ referred to Judge Wilkey’s statement in Laker Airways Ltd v Sabena, Belgian World Airlines, 731 F 2d 909, at 926-927 (DC Cir 1984) that anti-suit injunctions were most often necessary (a) to protect the jurisdiction of the enjoining court, or (b) to prevent the litigant’s evasion of the important public policies of the forum, and concluded (at 60):

“…without attempting to cut down the breadth of the jurisdiction, the golden thread running through the rare cases where an injunction has been granted appears to have been the protection of the jurisdiction; an injunction has been granted where it was considered necessary and proper for the protection of the exercise of the jurisdiction of the English court. …”

Also in South Carolina Lord Goff said ([1987] AC 24, at 45): “… I am at present inclined to the opinion that an injunction has generally been granted in such circumstances for the purpose of protecting the English jurisdiction ...” It would seem that he was not able to persuade his colleagues of the primacy of the protection of English proceedings, since in Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] A.C. 871 Lord Goff said at (at 893): “…one of their Lordships has been inclined to think that such an idea generally underlies the jurisdiction to grant injunctions restraining the pursuit of foreign proceedings …”

But Lord Goff is certainly not the only member of the House of Lords who has emphasised the importance of protection of the jurisdiction. In South Carolina Lord Brandon gave (at 41), as an example of unconscionable conduct, conduct “which interferes with the due process of the court.” In Turner v Grovit [2001] UKHL 65, [2002] 1 W.L.R. 107, at [28] Lord Hobhouse said:

“… It is recognised that to make an order against a person who is a party to proceedings before a foreign court may be treated as an interference (albeit indirect) in the foreign proceedings. Thus English law requires the applicant to show a clear need to protect existing English proceedings. The protection of English proceedings is, understandably, regarded as a legitimate subject matter for an English court. It is not the concern of any other court.”

I do not consider that the two judgments of this court relied on by the judgment debtors compel a conclusion that the English court should not enjoin conduct abroad which is designed to prevent compliance with an English judgment.

The first case is ED & F Man (Sugar) Ltd v Haryanto (No. 2) [1991] 1 Lloyd’s Rep 429. The underlying dispute concerned agreements for the sale of sugar by Man to Haryanto. Disputes were referred to arbitration. There were three actions between the parties in the English court. In one of them Haryanto’s claim that he was not bound by the disputed contracts was dismissed. Subsequently there was a settlement agreement under which Haryanto agreed to pay Man US$9 million. Haryanto then commenced an action in Indonesia claiming annulment of the disputed contracts, and Man began an action in Indonesia seeking enforcement of the acknowledgment of debt. The Indonesian court decided that the disputed contracts were illegal as were the obligations of Haryanto under the settlement agreement. Man then sought a declaration in the English court that the settlement agreement, the acknowledgment of debt and additional security given by Haryanto were valid and binding, and sought an injunction restraining Mr Haryanto from taking any steps in proceedings in Indonesia or elsewhere to prevent Man’s pursuit of its won proceedings. There were further proceedings by Mr Haryanto in Indonesia, and related proceedings in New Mexico by Man.

It was held that the Indonesian judgments would not be recognised in England as they were inconsistent with the previous decision of the English court, but the injunction to prevent reliance on the Indonesian judgments in Indonesia or other countries was refused. Neill LJ said (at 437-438):

“... In my view it would be wrong for this Court to grant an injunction which is designed to take effect inside Indonesia and which would interfere or purport to interfere with the judgment of a court of competent jurisdiction inside that country.

...

One can see the force of the argument that Man, having obtained declarations in England, should be entitled to ancillary relief to give teeth to the declarations and to reduce the risk of a multiplicity of proceedings. In the end, however, I have come to the conclusion that it would not be right on the facts of this case to grant any injunction which would have an extraterritorial effect on proceedings abroad.”

In refusing to interfere with the exercise of discretion by the judge, Mann LJ said (at 440) that the considerations which required caution were “respect for decisions of foreign Courts properly given within their jurisdictions and of not constraining albeit indirectly, the ability of foreign Courts to apply their local law in regard to the recognition and enforcement of judgments”.

It is important to note that in this case the Indonesian judgments had been given, and it is plainly a very serious matter for the English court to grant an injunction to restrain enforcement in a foreign country of a judgment of a court of that country. The decision in that case was reached as a matter of discretion, not jurisdiction. In Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Refinery AD [2003] 1 Lloyd’s Rep 1 the courts of the Former Yugoslav Republic of Macedonia had granted an interlocutory injunction restraining the defendants from paying any damages to the claimant in the English proceedings. Aikens J applied ED & F Man (Sugar) Ltd v Haryanto (No. 2) and refused as matter of discretion to grant an injunction restraining the defendants from relying on any judgment or order in Macedonia which prevented them from paying any damages adjudged due from them by the English court: [201]-[208]. Aikens J considered that an injunction would be contrary to comity. It was for the foreign court to decide whether to recognise the English judgment, and an injunction would put the officers of the defendants in an impossible position since there was already an injunction in Macedonia preventing the defendant from paying any damages. That too was a decision on discretion, and there too the foreign court had made orders which the English court was being asked, in effect, to defy.

These decisions show that it will be a rare case in which an injunction will be granted by the English court to prevent reliance abroad on, or compliance with, a foreign judgment, or an injunction which will indirectly have that effect. But there is no general principle that even in such a case no injunction will be granted. In Ellerman Lines, Ltd v Read [1928] 2 KB 144 (a case to which this court was not referred in argument) the Court of Appeal specifically rejected an argument that, while the English court could grant an injunction restraining the institution or continuance of proceedings in a foreign court, there was no power, after the foreign court had given judgment, to grant an injunction restraining the person who had obtained it from reaping its fruits: at 152 (Scrutton LJ), 155 (Atkin LJ), and 158 (Eve J). No doubt the power will only be exercised in exceptional circumstances, as they were in that case, where the party enjoined was a British subject who had obtained the judgment by fraud.

But the present case is not a case where the foreign court has given a judgment with which an English injunction will be inconsistent. It is simply a case in which the judgment debtors are seeking to re-litigate abroad the merits of a case which, after a long trial, they have lost in England. In my judgment it is a classic case of vexation and oppression, and of conduct which is designed to interfere with the process of the English court in litigation to which the judgment debtors submitted.

The second decision of this court on which the judgment debtors rely is The Western Regent [2005] EWCA Civ 985, [2005] 2 Lloyd’s Rep 359. That was a case involving a collision between the claimant’s vessel and the defendant’s North Sea oil installation. The claimant brought limitation proceedings in England under the Convention for the Limitation of Liability for Maritime Claims 1976. The defendant brought an action for damages in Texas, and contested the jurisdiction of the English court. The Commercial Court made a limitation decree, but declined to grant an injunction restraining the Texas proceedings. The latter decision was affirmed by the Court of Appeal on the ground that it was for the Texas court to determine what effect to give to the limitation decree. Clarke LJ (at [51]) reached that conclusion partly because of the nature of a limitation decree, and because the United States approached limitation differently. Rix LJ said (at [66]) that it was for other nations to decide on the international effect of an English declaration or decree under the 1976 Convention. This decision does not lay down any general principle outside the unusual context of limitation decrees.

As I have said, the judgment debtors have three objections to the form of the injunction. The first is that it should not have extended to the few remaining Lugano Convention States. That is right, and is accepted by Mr Masri. The second objection is that it did not contain a liberty to apply. The judgment debtors say that the judge refused an express liberty to apply. I do not consider that that is a fair reading of his judgment. All he did was refuse to insert a proviso permitting the judgment debtors to come back to the court should they wish to reformulate their Yemeni proceedings in order to safeguard their rights under the Production Sharing Agreement. His refusal was based on his rejection of their evidence on motive. I am satisfied that the order was subject to the normal implied liberty to apply.

The judgment debtors say that the injunction should be limited to Yemen, on the basis that there is no sufficient evidence of an intention to take proceedings in any other countries to re-litigate the matters decided by the English court. Mr. Masri referred to the finding of Gloster J in her judgment of December 20, 2007, at [82], that since the time of the judgment on liability, the actions of the judgment debtors had demonstrated in a patently obvious fashion that they proposed to take advantage of any opportunity open to them to resist enforcement of the judgments of the English courts, to evade their responsibility to pay Mr. Masri what is due to him, as found by the English courts, and to put every obstacle in his way to prevent him from enforcing judgment against them. At the hearing before Judge Mackie QC, the judgment debtors declined to say whether they intended to sue Mr Masri elsewhere. I see no reason to interfere with the judge’s exercise of discretion in those circumstances.

Where a party is properly before a court, an anti-suit injunction is not a separate claim requiring its own basis of jurisdiction. In alternative forum cases, such as the present, it is not necessary for the applicant to rely on a cause of action establishing a separate right not to be sued. The right to apply for an injunction is not of itself the cause of action but is ancillary and incidental to the existing proceedings. The judgment debtors’ submission to the English jurisdiction in those proceedings is a sufficient basis for the imposition of the anti-suit injunction, and the claim for the injunction does not require any amendment, and does not require any separate basis of jurisdiction either under the Brussels I Regulation or under CPR 6.20. Nor in the case of an injunction directed at a domiciliary of a Brussels I Regulation State is it necessary that the injunction be a protective or provisional measure, but if that were necessary, then the anti-suit injunction was such a measure.

The discretion was properly exercised in this case, consistently with the dictates of comity. It is consistent with principle for an English court to restrain re-litigation abroad of a claim which has already been subject of an English judgment. There is long-established authority that protection of the jurisdiction of the English court, its process and its judgments by injunction is a legitimate ground for the grant of an anti-suit injunction.

I would therefore vary the order to exclude the Lugano Convention States, and dismiss the appeal.

I agree.

I also agree.