Tadros & Anor v Barratt & Ors

This is an application for an anti-suit injunction made in the course of current proceedings in England which concern the estate of the late Wedad Tadros (“the deceased”). The deceased left a number of purported wills. Although the validity of these purported wills is challenged, I will refer to them as “wills” without any pre-judgment as to whether they will in due course be held to be valid or of no effect. In particular, these wills include a will which has been referred to as “the English will” and another referred to as “the Dutch will”.

The current proceedings in England were initially confined to issues arising in relation to the English will. The proceedings were later amended to include issues arising in relation to the Dutch will. The Second Defendant to the English proceedings is the sole beneficiary under the English will and she is the sole executrix, but not a beneficiary, under the Dutch will. The sole beneficiary under the Dutch will is a Dutch stichting, Stichting Dr Basile Khoudokormoff Charitable Foundation for Orphans, to which I will refer as “the Foundation”.

When the English proceedings had been continuing for about a year, the Second Defendant and the Foundation brought proceedings in the Netherlands (against the Claimants in the English proceedings) seeking a determination of the issues which arise in relation to the Dutch will. The Claimants in the English proceedings now seek an anti-suit injunction against the Second Defendant and the Foundation restraining them from continuing the Dutch proceedings.

Mr Dew appeared on behalf of the Claimants and Mr Wilson appeared on behalf of the Ninth Defendant. I am grateful to counsel for their clear and helpful submissions. The Second Defendant had instructed solicitors, Withers LLP, who wrote to the court shortly before the hearing to set out the Second Defendant’s position. I will refer to that position later in this judgment.

The deceased was born in Khartoum, Sudan on 14 April 1946. She married Dr Basile Khoudokormoff in London on 16 June 1973. He was said to be of Russian origin but born in Belgium and at the time of his marriage he was a Dutch national. He died on 23 September 2010. The deceased died on 26 October 2012. At the time of her death, she was a Dutch national, resident in London.

There is a dispute as to the domicile of the deceased at the date when she executed or purported to execute the English will and the Dutch will. The Claimants say that the deceased had an English domicile on those dates. The Second Defendant and the Foundation say that the deceased was domiciled in the Netherlands at the relevant times. The domicile of the deceased is relevant to a number of issues which potentially arise in relation to both the English will and the Dutch will. The parties have filed substantial evidence in relation to the dispute as to the deceased’s domicile. It is simply not possible on this interlocutory application to form a view as to the correct legal answer as to the domicile of the deceased.

The deceased left assets in England, the Netherlands, France and the Sudan and she was connected with a trust or an anstalt in Liechtenstein. She made wills dealing with some of her English assets, and some or all of her assets in France and the Sudan. She also sought to make a will in relation to the trust or anstalt in Liechtenstein. There is a dispute as to whether the Dutch will, if valid, deals with her assets worldwide or only her Dutch assets.

The Claimants are two of the brothers of the deceased. The evidence suggests that the First Claimant lives in Greece and the Second Claimant lives in England.

The First Defendant apparently witnessed the English will of the deceased. He has been described as a will writer and his fiancée, Catherine Sergeant, also apparently witnessed the will of the deceased. The English will named the First Defendant as the executor but he renounced his executorship on 24 April 2013 and the present proceedings have been discontinued as against him.

The Second Defendant is the niece of the deceased and is the sole beneficiary under the English will. She is the sole executrix, but not a beneficiary, under the Dutch will. She lives in Athens, Greece.

I understand that the Third to the Eighth Defendants are relatives of the deceased. The claim form identifies their addresses at various locations in the Sudan, United Arab Emirates and England.

The Foundation (which has been joined as the Ninth Defendant) is a Netherlands stichting or foundation. The Dutch will provided for the creation of this foundation. Although there is a dispute as to the validity and effect of the Dutch will, the Foundation was registered on 6 November 2013 in the Commercial Register in the Netherlands. The parties before me accepted that the Foundation now exists in Dutch law. The Dutch will provided for the articles of association of the Foundation. I was told that on 12 February 2014, the Foundation amended its articles of association. The original articles provided that the purpose of the Foundation was to provide support or care for orphans in South Sudan. The amended articles now provide that the Foundation may also provide such support or care for orphans in another country if, for one or more reasons, the Foundation cannot achieve its original purpose in South Sudan. The Foundation’s website refers to an intention to set up an orphanage in central or eastern Europe.

Upon registration of the Foundation, the Second Defendant became its sole director. On 24 January 2014, a Mr Sempel was appointed as a second director. The Claimants suggest that Mr Sempel is somehow or other not a real director of the Foundation but I am in no position to evaluate that suggestion. On 13 April 2014, the Second Defendant ceased to be a director of the Foundation leaving Mr Sempel as the sole director. Since January 2014, the Second Defendant and the Foundation have been separately advised and represented.

The document described as the English will states that it was signed by the deceased on 13 September 2010. It is the Second Defendant’s case that the deceased actually signed this will on 14 May 2011. If that is so, then this will was executed following the death (on 23 September 2010) of the deceased’s husband although the will is drafted on the basis that he was then still alive. The English will contained the following potentially relevant provisions:

The documents before me include a 6 page letter of wishes which bears the name of the deceased, but not her signature, and which is dated 13 September 2010. It is not necessary for present purposes to refer to very much of this letter. The letter describes the deceased’s relationship with the Second Defendant. The letter also declares an intention to move to reside in Holland in the near future. Further, the letter describes the wish of the deceased’s husband to set up a foundation in Holland to run an orphanage in Southern Sudan to bring up orphans in a decent Christian way and that the intention was to use the real property owned in Holland to fund the foundation.

The following are the principal issues as to the English will:

The Dutch will was signed by the deceased on 27 May 2011 at the Dutch embassy in London. Her signature was witnessed by a Mr Westhoff who was a consular official there and who, the Second Defendant contends, acted as a Dutch civil law notary. Although the deceased’s husband had died on 23 September 2010, the Dutch will is drafted on the basis that he was then still alive.

The text of the Dutch will is partly in Dutch and partly in English. I understand that under Dutch law, the articles of association of a stichting must be expressed in Dutch. The Dutch will contained the following potentially relevant provisions:

The following are the principal issues as to the Dutch will:

The Claimants’ pleadings state that the deceased and her husband were the beneficiaries of a Liechtenstein trust known as the Edelweiss Trust, which held an anstalt known as the Royal Olympic Anstalt, which owned the leases of two residential flats, numbers 4 and 170 Oakwood Court. The documents before me included a document dated 13 September 2010, signed by the deceased, which is expressed to be the final will and testament of the deceased in respect of assets held by Royal Olympic Anstalt and Edelweiss Trust. The Claimants plead that this will and testament prepared by the deceased was ineffective. The Foundation says that this is the subject of proceedings in Liechtenstein. This dispute is not the subject of any claim in the English proceedings.

It is said that the deceased executed, at the Sudanese embassy on 17 January 2011, a will dealing with assets owned by her in the Sudan. The Claimants’ pleadings state that the validity and effectiveness of this will is being challenged in Sudan. The Foundation says that the dispute as to the Sudanese assets has been settled.

I was told that there were two wills dealing with assets in France but it was not suggested that these wills were relevant for present purposes.

On 28 March 2013, the Claimants commenced the present proceedings against the first eight Defendants, i.e. not including the Foundation. As issued, the proceedings only sought relief in relation to the English will. It was contended that, for various reasons, the English will was of no effect and the Claimants sought a declaration that the deceased had died intestate in respect of her English estate. It was said that the Claimants and the Second to Eighth Defendants were entitled to inherit the English estate on such an intestacy.

The Second Defendant served a detailed Defence and Counterclaim. She contended that the English will had been duly executed and was valid. She pleaded that the English will had been executed on 14 May 2011 and she gave a detailed explanation as to why it bore the date of 13 September 2010 and why it referred to the deceased’s husband as if he were then still alive. She counterclaimed for an order that the court should pronounce for the force and validity of the English will in solemn form. The Claimants then served a Reply and Defence to Counterclaim.

Before 13 December 2013, the Claimants and the Second Defendant exchanged draft amended pleadings, which were an amended Particulars of Claim, an amended Defence and Counterclaim and an Amended Reply and Defence to Counterclaim.

On 13 December 2013, at a hearing attended by counsel for the Claimants and for the Second Defendant, Deputy Master Bartlett made an order which:

The solicitors’ correspondence prior to the hearing on 13 December 2013 showed that the Second Defendant was agreeable to most of the directions which were suggested and in particular to the amendments to the pleadings to raise issues as to the effect of the Dutch will and as to the instruction of a joint expert on Dutch law. The Foundation was not represented at that hearing but, as at that date, the Second Defendant was the sole director of the Foundation.

The Amended Particulars of Claim included a claim in relation to the Dutch will and claimed that the Dutch will was of no effect, on various grounds. The Second Defendant’s Amended Defence and Counterclaim contended that the Dutch will was valid and effective. The Second Defendant also contended that on the true construction of the Dutch will, it dealt only with the Dutch assets of the deceased so that, in particular, it did not deal with the lease of 167 Oakwood Court and, accordingly, did not revoke the English will in relation to that asset. In the alternative to this contention, the Second Defendant sought rectification of the Dutch will under section 20 of the Administration of Justice Act 1982 so that it dealt only with assets in the Netherlands. The Second Defendant also counterclaimed for various heads of relief in relation to the Dutch will, including the grant of letters of administration in relation to the Dutch will.

The Claimants say that on 21 January 2014 they served the Foundation, in accordance with the order of 13 December 2013. The Foundation contends that it has not been validly served under Dutch law. There is conflicting evidence from two Dutch lawyers on that point which strongly supports the conclusion that the Foundation has been properly served for the purposes of CPR 19.8A.

Following the case management conference, the Claimants and the Second Defendant have served lists of the issues in the English proceedings. Both lists identify the issues pleaded in the English proceedings as to the Dutch will.

In accordance with the Master’s order of 13 December 2013, the Claimant and the Second Defendant agreed joint instructions to an expert in Dutch law and an expert was jointly instructed on 13 March 2014.

The trial of the English proceedings is (at present) due to take place in April 2015 with a time estimate of 10 days.

The first step taken in the courts of the Netherlands was taken by the Claimants. On or about 2 December 2013, they applied in the Netherlands for orders, described as attachments, to prevent the deceased’s Dutch assets being dealt with by the Second Defendant or the Foundation, pending the determination of the English proceedings. Such orders were granted on a summary, without notice, basis on 3 December 2013. The Second Defendant and the Foundation have since sought to challenge those orders on the ground that, under Dutch law, such orders should only be made, or continued, in relation to underlying substantive proceedings. The Claimants contend that the English proceedings can qualify as underlying substantive proceedings. The Second Defendant and the Foundation say otherwise.

On 6 February 2014, the Claimants applied in the Netherlands for the appointment of an interim administrator in relation to the deceased’s Dutch estate. On or about 14 March 2014, the Second Defendant and the Foundation counterclaimed in those proceedings asserting the validity of the Dutch will. On 31 March 2014, the court dismissed the Claimants’ application on the ground that there was no need for an interim administrator while the attachments were in place. The court also dismissed the counterclaim on the ground that it was brought in the wrong court in the Netherlands.

Meanwhile, on 3 March 2014, the Second Defendant and the Foundation brought separate proceedings in the Netherlands against the Claimants, and other members of the deceased’s family, seeking to uphold the validity of the Dutch will and seeking a declaration that the Foundation was the sole beneficiary of the estate of the deceased. The Second Defendant was expressed to be a party to these proceedings in her capacity as executrix of the Dutch will and also in her personal capacity. At the hearing before me, the parties proceeded on the basis that the claim in those proceedings was to the effect that the Dutch will dealt with the deceased’s worldwide estate.

In April 2014, following an intimation from the Claimants on 4 April 2014 (referred to below) that they would seek to restrain proceedings in the Netherlands, the Second Defendant and the Foundation brought a further claim seeking to revoke the attachments and seeking an order that the Claimants should not make an application to the English court for an anti-suit injunction restraining them from bringing proceedings in the Netherlands. The application in the Netherlands was due to be heard there on 16 April 2014 but that hearing did not take place because of the order made by Sales J in the English proceedings on 14 April 2014, as further explained below.

If the Dutch will is valid and gives the deceased’s worldwide estate to the Foundation, this would apparently have the result that the Dutch will revoked the English will which would otherwise have given the lease of 167 Oakwood Court to the Second Defendant. There is obviously a major conflict of interest between the Second Defendant in her personal capacity and the Foundation.

The Claimants in the English proceedings have not formally responded in the Netherlands to the Dutch proceedings and they say that they have not submitted to the jurisdiction of the Dutch court in relation to the proceedings brought by the Second Defendant and the Foundation.

On 4 April 2014, the Claimants issued an application notice (returnable on 22 April 2014) seeking an order restraining the Second Defendant and the Foundation from pursuing proceedings in the Netherlands concerning the same subject matter as in the English proceedings.

Prior to the issue of that application notice, the Second Defendant’s solicitors (Withers) had written to the Claimants’ solicitors agreeing that the Second Defendant would not, in her personal capacity, prosecute the Dutch proceedings but left open the position as to her capacity as executrix under the Dutch will.

On 14 April 2014, in view of the then imminent hearing of the proceedings in the Netherlands (on 16 April 2014), the Claimants applied to the court for an interim anti-suit injunction. Withers on behalf of the Second Defendant agreed to such an order. Sales J made an order restraining the Second Defendant and the Foundation from taking any further steps in the Dutch proceedings and from commencing or pursuing any other claim regarding the Dutch will or the estate of the deceased. The latter orders were not expressly limited to proceedings outside England and Wales, although that must have been intended. The Second Defendant and the Foundation were also ordered to ensure that the then forthcoming hearing in the Netherlands on 16 April 2014 should be withdrawn or adjourned. It was further ordered that the Second Defendant and the Foundation should not deal with any of the assets of the deceased in the Netherlands, subject to certain permitted exceptions. The above parts of the order were expressed to continue until the return date of the Claimants’ application on 22 April 2014. It was then ordered that the Foundation should be added as a party to the English proceedings and that the Claimants had permission to serve the Foundation out of the jurisdiction. The Second Defendant and the Foundation were given permission to apply to have the order set aside or varied. The Foundation has not applied to set aside the order that it be added as a party to the English proceedings but it says that it has not submitted to the jurisdiction of the English court.

On 22 April 2014 Hildyard J, with the consent of counsel for the Claimants for the Second Defendant and for the Foundation, adjourned the Claimants’ applications to a further hearing on a day to be fixed and the order of Sales J of 14 April 2014 was continued until such hearing with some modifications. One such modification was to restrict the order preventing the Second Defendant and the Foundation from bringing proceedings so that it only applied to proceedings other than the current English proceedings.

The legal principles to be applied in this case are to be derived from, in particular, the decisions in Société National Industrielle Aerospatiale v Lee Kui Jak [1987] 1 AC 871 (Privy Council), Airbus Industrie GIE v Patel [1999] 1 AC 119 (House of Lords) and Turner v Grovit [2002] 1 WLR 107 (House of Lords). The present case is not governed by the Judgments Regulation (Council Regulation (EC) No. 44/2001) which does not apply to rights in property arising out of wills and succession: see article 2(a) thereof. Accordingly, the principles set out in the decision of the House of Lords in Turner v Grovit (to which I have referred) are not affected by the later decision of the ECJ in that case, reported at [2005] 1 AC 101, which decision applies to a case within the Judgments Regulation.

In a number of reported cases, the courts have found helpful the summary of principles originally put forward by Andrew Smith J in Royal Bank of Canada v Co-operatieve Centrale Raiffeissen-Boerenleenbank [2004] 1 CLC 170, which were approved and set out in the judgment of Evans-Lombe J in that case in the Court of Appeal: [2004] 1 Lloyd’s Rep 471 at [8]. This summary was again repeated by Clarke LJ (with whom Rix LJ and Sir Martin Nourse agreed) in the Court of Appeal in Seismic Shipping Inc v Total E&P UK plc (The Western Regent) [2005] 2 Lloyd’s Rep 359 at [44] – [45], as follows:

“44 The judge summarised the relevant principles in paragraph 29 of his judgment by reference to Andrew Smith J's summary of them, which was approved by this court, in Royal Bank of Canada v Co-operatieve Centrale Raiffeissen-Boerenleenbank [2004] 1 CLC 170. They are set out in paragraph 8 of the judgment of Evans-Lombe J in this court:

  ‘(i) Under English law a person has no right to be sued in a particular forum, domestic or foreign, unless there is some specific factor that gives him that right, but a person may show such a right if he can invoke a contractual provision conferring it on him or if he can point to clearly unconscionable conduct (or the threat of unconscionable conduct) on the part of the party sought to be restrained: Turner v Grovit [2002] 1 WLR 107 at para 25 per Lord Hobhouse.

(ii)

There will be such unconscionable conduct if the pursuit of foreign proceedings is vexatious or oppressive or interferes with the due process of this Court: South Carolina Insurance Co v Assurantie Maatschappij de Zeven Provincien NV [1987] AC 24 at p 41D; Glencore International AG v Exter Shipping Ltd [2002] CLC 1090 at para 42.

(iii)

The fact that there are such concurrent proceedings does not in itself mean that the conduct of either action is vexatious or oppressive or an abuse of court, nor does that in itself justify the grant of an injunction: Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 817 at p 894C; Credit Suisse First Boston (Europe) Ltd v MLC (Bermuda) Ltd [1999]CLC 579 at p 596; Airbus Industrie GIE v Patel [1999] 1 AC 119 at p 133G–H.

(iv)

However, the court recognises the undesirable consequences that may result if concurrent actions in respect of the same subject matter proceed in two different countries: that “there may be conflicting judgments of the two courts concerned” or that there “may be an ugly rush to get one action decided ahead of the other in order to create a situation of res judicata or issue estoppel in the latter”: see The Abidin Daver [1984] AC 398 at pp 423H–424A per Lord Brandon.

(v)

The Court may conclude that a party is acting vexatiously or oppressively in pursuing foreign proceedings and that he should be ordered not to pursue them if (a) the English court is the natural forum for the trial of the dispute, and (b) justice does not require that the action should be allowed to proceed in the foreign court, and more specifically, that there is no advantage to the party sought to be restrained in pursuing the foreign proceedings of which he would be deprived and of which it would be unjust to deprive him: Société Aerospatiale, ibid at pp 895D and 896F—

(vi)

In exercising its jurisdiction to grant an injunction, “regard must be had to comity and so the jurisdiction is one which must be exercised with caution”: Airbus Industrie, ibid at p 708; 133F. Generally speaking in deciding whether or not to order that a party be restrained in the pursuit of foreign proceedings the court will be reluctant to take upon itself the decision whether a foreign forum is an inappropriate one: Turner v Grovit, ibid at para 25.’

45 That seems to me to be a correct summary of the principles which have been developed to assist the court to decide how to decide whether to grant an anti-suit injunction to restrain foreign process in the exercise of the power conferred on the court under section [37] of the SCA 1981 to grant an injunction ‘in all cases in which it appears to the court to be just and convenient to do so. As the judge put it in paragraph 30 of his judgment, the essential touchstone is whether there has been unconscionable conduct or the threat of unconscionable conduct.”

In Deutsche Bank AG v Highland Crusader Partners LP [2010] 1 WLR 1023, Toulson LJ (with whom Goldring and Carnwath LJJ agreed) summarised the key principles in relation to anti-suit injunctions and forum non conveniens in these terms at [50]:

“Leaving aside the provisions of the Brussels I Regulation and previous conventions, which are not relevant in this case, I would summarise the relevant key principles as follows.

(1)

Under English law the court may restrain a defendant over whom it has personal jurisdiction from instituting or continuing proceedings in a foreign court when it is necessary in the interests of justice to do.

(2)

It is too narrow to say that such an injunction may be granted only on grounds of vexation or oppression, but, where a matter is justiciable in an English and a foreign court, the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive.

(3)

The courts have refrained from attempting a comprehensive definition of vexation or oppression, but in order to establish that proceeding in a foreign court is or would be vexatious or oppressive on grounds of forum non conveniens, it is generally necessary to show that (a) England is clearly the more appropriate forum (“the natural forum”), and (b) justice requires that the claimant in the foreign court should be restrained from proceeding there.

(4)

If the English court considers England to be the natural forum and can see no legitimate personal or juridical advantage in the claimant in the foreign proceedings being allowed to pursue them, it does not automatically follow that an anti-suit injunction should be granted. For that would be to overlook the important restraining influence of considerations of comity.

(5)

An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, the principle of comity requires the court to recognise that, in deciding questions of weight to be attached to different factors, different judges operating under different legal systems with different legal policies may legitimately arrive at different answers, without occasioning a breach of customary international law or manifest injustice, and that in such circumstances it is not for an English court to arrogate to itself the decision how a foreign court should determine the matter. The stronger the connection of the foreign court with the parties and the subject matter of the dispute, the stronger the argument against intervention.

(6)

The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive.

(7)

A non-exclusive jurisdiction agreement precludes either party from later arguing that the forum identified is not an appropriate forum on grounds foreseeable at the time of the agreement, for the parties must be taken to have been aware of such matters at the time of the agreement. For that reason an application to stay on forum non conveniens grounds an action brought in England pursuant to an English non-exclusive jurisdiction clause will ordinarily fail unless the factors relied upon were unforeseeable at the time of the agreement. It does not follow that an alternative forum is necessarily inappropriate or inferior. (I will come to the question whether there is a presumption that parallel proceedings in an alternative jurisdiction are vexatious or oppressive).

(8)

The decision whether or not to grant an anti-suit injunction involves an exercise of discretion and the principles governing it contain an element of flexibility.”

I have also considered the decision of the Court of Appeal in Star Reefers Pool Inc v JFC Group Co Ltd [2012] 1 CLC 294 where the principles are again restated. I need not set out any passage from the judgment of Rix LJ (with whom Sullivan and Lewison LJJ agreed) but I note his comments in [30] as to the relevance of the fact that the defendant, who is sought to be made the subject of an anti-suit injunction, has not agreed to litigate in England and has not submitted to the jurisdiction.

Some of the principles described in these cases refer to the effect of an exclusive, or a non-exclusive, jurisdiction clause. The present case is not governed by any such clause.

I was referred to two cases which considered the appropriateness of the grant of an anti-suit injunction in the context of a dispute as to rights of succession to the estate of a deceased person. The two cases are Al-Bassam v Al-Bassam [2004] EWCA Civ 857 and Morris v Davies [2011] EWHC 1272 (Ch).

In Al Bassam, the deceased was a national of Saudi Arabia who was living in London at the time of his death. The dispute was between the claimant (who said that she was the wife of the deceased and who relied on an apparent will naming her as an executrix and the beneficiary in relation to the whole of his estate) and the defendant (the half-brother of the deceased, who claimed the whole of the deceased’s estate under the Shari’a law of inheritance). The claimant brought proceedings in England, relying on the will. The defendant served a defence and counterclaim in those proceedings and applied for an order for the trial of preliminary issues as to the validity of the will under Islamic law. The defendant’s application for the trial of preliminary issues was dismissed whereupon he brought proceedings in Saudi Arabia seeking a determination there as to the validity of the will. The claimant applied for an anti-suit injunction to restrain the defendant from continuing his proceedings in Saudi Arabia. The judge granted such an injunction and the defendant appealed. The principal judgment in the Court of Appeal was given by Chadwick LJ. He explained the issues in the English proceedings and in the Saudi proceedings. He reasoned that certain threshold questions needed to be decided in the English proceedings in any event. What was needed were case management directions as to what issues could, and should, be decided in the English proceedings as preliminary issues. These were issues which the defendant was content should be decided in England and which were not raised in the Saudi proceedings. When those issues were decided, the court could then consider whether to dismiss the English proceedings or to stay them pending the decision of issues of Islamic law in the Saudi proceedings. Until those preliminary issues were decided, the court would impose an interim restraint on the defendant continuing the Saudi proceedings. This limited restraint was necessary to protect the English proceedings from misuse and to prevent oppression to the claimant.

In Morris v Davies, the claimant was the executor named in what was said to be the will of the deceased. The claimant brought proceedings in England asking the court to pronounce in favour of the will. The defendants served a defence and counterclaim, challenging the will and contending that the deceased was domiciled in Belgium at the date of his death. The Master ordered the trial of a preliminary issue; his order was not opposed by the defendants. A date for the trial of the preliminary issue was fixed. The defendants then started proceedings in Belgium against the beneficiary named in the alleged will. There was no expert evidence as to certain legitimate advantages which the defendants claimed resulted from the Belgian proceedings. The deputy judge (Ms Asplin QC) held that England was the natural forum for the dispute and that the conduct of the defendants was vexatious and oppressive. She also found assistance in Al-Bassam v Al-Bassam. She held that, as in that case, proceeding with the Belgian action would not obviate the need for a trial on the preliminary issue in the English proceedings. The defendants would not lose any legitimate advantages resulting from the Belgian proceedings if they were only restrained until after the preliminary issue was determined in the English proceedings. The deputy judge accordingly restrained the defendants from continuing the Belgian proceedings before the preliminary issue was determined.

The Claimants contend that the court ought to grant an anti-suit injunction against both the Second Defendant and the Foundation, restraining them from continuing the proceedings they brought in the Netherlands. The Claimants say that England is the natural forum for litigation about the wills of the deceased, including the Dutch will. The issues of fact which will arise in relation to the English will will be the same as, or will significantly overlap, the issues of fact arising in relation to the Dutch will. The Claimants rely on the fact that the English proceedings will determine all of the issues as to the Dutch will, that the Second Defendant herself has raised issues in the English proceedings as to the Dutch will and that the Foundation will be bound by the court’s decision in those proceedings. There will be no difficulty in the English court applying Dutch law in this case. In practice, the Dutch court will respect the decision of the English court.

The Claimants say that the Second Defendant’s conduct in commencing the proceedings in the Netherlands is vexatious and oppressive and ought to be restrained. They say that the Claimants should not be required to litigate the issues as to the Dutch will in two jurisdictions. They also rely on the fact that the Second Defendant’s case is different in the two sets of proceedings. In the English proceedings, she contends that the Dutch will deals only with Dutch assets and does not revoke the English will whereas in the Dutch proceedings she appears to support the Foundation’s claim that the Dutch will deals with all of the deceased’s assets.

As to the Foundation, the Claimants say that the Foundation is “the creature” of the Second Defendant and is wholly controlled by her and an anti-suit injunction is also appropriate as against the Foundation. The Claimants say that the Foundation has been served in accordance with the order made under CPR 19.8A; further, the Foundation has made no application to set aside the order made on 14 April 2014 for service of the proceedings on it. In addition, the Foundation has made no application for a stay of the English proceedings as against it.

The Claimants also say that the proceedings which they brought in the Netherlands were in support of the English proceedings and do not undermine their application for an anti-suit injunction against the Second Defendant and the Foundation. The Claimants also seek an order freezing the assets of the deceased’s estate in the Netherlands.

The Second Defendant did not appear at the hearing before me. On 26 March 2014, her solicitors (Withers) had written to the Claimants’ solicitors agreeing that, in her personal capacity, the Second Defendant would not prosecute the proceedings brought by her and the Foundation in the Netherlands and that they would revert to the Claimants’ solicitors as to the stance the Second Defendant would take in her capacity as executrix under the Dutch will. On 27 June 2014, Withers wrote to the court to set out her position in relation to the application for an anti-suit injunction. Withers asserted that the Second Defendant was the only person empowered under Dutch law to represent the Foundation in legal proceedings while the estate remained unadministered. They said that the Second Defendant was therefore obliged under Dutch law to support the Foundation in its opposition to an anti-suit injunction. They said that an anti-suit injunction against the Second Defendant in her capacity as executrix would in effect be an anti-suit injunction against the Foundation. As to the Second Defendant’s personal capacity, Withers said that the Second Defendant was neutral and did not oppose the application for an anti-suit injunction against her and she had in any event ceased to be a party to the Dutch proceedings in her personal capacity.

The Foundation says that an anti-suit injunction should not be granted and that, instead, the English proceedings should be stayed, pending the outcome of the proceedings in the Netherlands. The Foundation says that it is not “the creature” of the Second Defendant. It is a separate legal person and there exists a major conflict of interest between it and the Second Defendant. It is the Foundation’s case that it is entitled under the Dutch will to the worldwide assets of the deceased and that the Dutch will revoked the English will. This means that the Second Defendant does not inherit the lease of 167 Oakwood Court under the English will. The Second Defendant has now ceased to be a director of the Foundation.

The Foundation points to the fact that the deceased was a Dutch national, and made a Dutch will expressly governed by Dutch law, which may be held to dispose of her worldwide estate, and under which the sole beneficiary is the Foundation, which has legal personality under Dutch law. It is said that the Netherlands is the natural forum for any litigation in relation to the Dutch will. It is accepted that the English court has jurisdiction in relation to English immoveable property. The Foundation also submits that if the Dutch will is held to be valid and if it applies to the deceased’s worldwide estate then the only question for the English court will be whether the Dutch will should be recognised in England as applying to the only English immoveable, namely, the lease of 167 Oakwood Court; the Foundation says that the Dutch will should be so recognised.

The Foundation also says that an order of the English court in the English proceedings could not be enforced directly in the Netherlands and separate proceedings would have to be brought in the Netherlands for the enforcement of the English order and the court in the Netherlands might still make a different order. Further, the Claimants have obtained interim relief against the Foundation in the Netherlands and the anti-suit injunction which is sought would prevent the Foundation putting forward any case in the Netherlands for the variation or the discharge of that interim relief.

The Foundation says that the anti-suit injunction which is sought would unjustly deprive it of legitimate juridical advantages. First of all, the Foundation wishes to rely on a procedure which exists in the Netherlands for certification of the effect of a will. In this case, a certificate of execution of the Dutch will was granted on 1 August 2013 and a certificate of inheritance was granted on 9 December 2013. These certificates will be accepted in the Netherlands as prima facie determining the validity of the Dutch will, although it is conceded that the certificates can be overridden by a decision of the Dutch courts. Next it is said that the English courts will recognise the decision of the Dutch court but the same may not happen in reverse. Then it is said that in the Dutch proceedings, the executrix will be able to fund her stance in the litigation out of the estate whereas in the English proceedings the Foundation would not be able to fund its case out of the estate. It is also said that it is preferable for a Dutch court, rather than an English court, to determine and apply the relevant Dutch law. Finally, it is submitted that the English rules as to when a losing party in litigation about a will pays the costs of the successful party are different from the comparable Dutch rules; it is said that the Foundation will run a greater risk of having to pay the other party’s costs if the proceedings are in England rather than in the Netherlands.

In these circumstances, the Foundation submits that its conduct in bringing proceedings about the Dutch will in the Netherlands is not vexatious or oppressive, is not unconscionable, does not interfere with the due process of the English court and it is not unjust to the Claimants to allow the Dutch proceedings to continue.

Finally, on the question of an anti-suit injunction, it is said that the Foundation has not submitted to the jurisdiction of the English courts and that an anti-suit injunction would not be recognised by the Dutch courts.

As to the freezing order which is claimed, the Foundation says that such an order would be inappropriate as it would prevent the estate paying its creditors and prevent the estate funding the legal costs of the Second Defendant and/or the Foundation in relation to the litigation about the Dutch will.

Finally, the Foundation contends that the Claimants’ undertaking in damages is inadequate.

Apart from differences in emphasis, the Claimants and the Foundation did not disagree as to the legal principles to be applied in this case. However, they fundamentally disagreed as to the effect of applying those principles to the facts. It seems to me that there are two preliminary matters, which are likely to have an important bearing on the outcome of the application for an anti-suit injunction, and with which I ought to deal at the outset of this discussion. The first relates to the Claimants’ contention that the Second Defendant and the Foundation are to be treated in the same way; the Claimants submitted that the Foundation was “the creature” of the Second Defendant. The second relates to the proper identification of “the dispute” between the Claimants and the Foundation.

On the first of these issues, I have reached the conclusion that the positions of the Second Defendant and the Foundation must be considered separately. It was accepted for the purposes of the present application that I should accept that the Foundation exists under Dutch law. Accordingly, the Foundation is a separate legal person. The Foundation was created for charitable purposes. The Second Defendant has no beneficial interest in the Foundation or its assets. While she was a director of the Foundation, she no doubt owed duties to the Foundation and her position was not one where she enjoyed personal rights in relation to the Foundation. As executrix of the Dutch will, if valid, she again stands in a position of responsibility to the Foundation. There is a clear conflict of interest between the Second Defendant and the Foundation. The fact that the Second Defendant did not appear to recognise this in the past does not enable me to say that the conflict of interest does not exist.

I will now consider the second preliminary matter as to the identification of the dispute between the parties. I acknowledge that the dispute as to the English will and the dispute as to the Dutch will raise similar legal issues, albeit involving different laws. I also acknowledge that the factual issues in relation to the two wills are intertwined. It is said that the wills were executed within two weeks of each other. The factual issues as to the deceased’s capacity and knowledge and approval of the wills will plainly overlap. So too will the factual issues as to the relationship between the deceased and the Second Defendant.

Nonetheless, I consider that the proper identification of the dispute, for the purpose of applying the legal principles as to anti-suit injunctions depends on which of the parties is being considered. As regards the Claimants, they are directly interested in both the dispute about the English will and the Dutch will. As regards the Second Defendant, she is directly interested in the dispute about the English will. In relation to the Dutch will, the Second Defendant is the executrix but she has a personal interest in the Dutch will not extending to the English assets; she has not, so far, argued that the Dutch will is not valid.

Although the legal issues as to the English will directly affect the Claimants and the Second Defendant, they do not directly affect the Foundation. That is because the Foundation’s interest is only as beneficiary under the Dutch will. If the Dutch will is valid and extends to the deceased’s worldwide assets, then it is not apparently disputed that the Dutch will revoked the English will. In that event, the Foundation will not be concerned to know whether the English will was valid. If the Dutch will is valid but extends only to the Dutch assets, then again the Foundation will not be concerned to know whether the English will was valid. If the Dutch will is invalid, the Foundation has no claim and possibly no existence and, again, will not be concerned to know whether the English will was valid. I recognise, however, that the position under the English will may have an indirect effect on the Foundation. In particular, if the English will is valid, then the Second Defendant has a reason to pursue her case as to the construction of the Dutch will and/or her claim to rectify the Dutch will if it extends to the English assets. Conversely, if the English will is invalid, then the Second Defendant has no claim under it and will not be concerned to argue that the Dutch will is, on its true construction or following rectification, to be restricted to the Dutch assets. Overall, these considerations suggest to me that, for the purpose of deciding whether I should grant an anti-suit injunction against the Foundation, I should proceed on the basis that the dispute to which the Foundation is a party and the dispute which the Foundation wishes to litigate in the Netherlands is a dispute about the Dutch will and not a dispute about both the Dutch will and the English will. I reach this conclusion nothwithstanding the fact that the issues in both disputes are intertwined in the way in which I have described.

Having dealt with these two preliminary matters, I will now seek to apply the legal principles as to anti-suit injunctions in relation to the Claimants’ application against both the Second Defendant and the Foundation.

The authorities refer to the question whether the English court has personal jurisdiction over the person sought to be restrained. It seems to be accepted that the English court has such jurisdiction over the Second Defendant. As regards the Foundation, I have held that it has been served with the order made under CPR 19.8A and, further, it has been joined as a party to these proceedings. It has not applied to set aside its joinder and, in any event, such an order was properly made under CPR 6BPD 3.1(14), certainly so long as the English proceedings concern the Dutch will. Mr Wilson for the Foundation submitted that I should order a stay of the English proceedings in relation to the Dutch will but there is no formal application for such a stay. Further, the Second Defendant wishes to claim in this court an order for rectification of the Dutch will and the Foundation would be a necessary party to that claim.

I next consider the question of the natural forum for the dispute (or disputes). If the dispute were confined to the English will alone, then I consider that England would be the natural forum. If the dispute were confined to the Dutch will, then I consider that the Netherlands would be the natural forum; the deceased was a Dutch national and made a Dutch will, which was said to be governed by Dutch law, which deals (at least) with the Dutch assets, where the sole beneficiary has legal personality under Dutch law and where the dispute as to the validity of the will is largely or entirely governed by Dutch law.

Before the commencement of any proceedings, there might have been considerable room for dispute as to whether England or the Netherlands was the natural forum for the determination of a combined single dispute encompassing both wills. The fact of litigation in one jurisdiction may over time serve to produce the result that that jurisdiction becomes identified as the natural forum: see Morris v Davies at [15]. In this case, the litigation about the English will began in March 2013. In December 2013, the English litigation was extended by agreement between the Claimants and the Second Defendant to embrace the dispute about the Dutch will. The Claimants and the Second Defendant then took steps in the English proceedings on that basis. It can thus be said that England has become the natural forum in relation to the dispute between the Claimants and the Second Defendant. However, this approach has less validity as regards the Foundation. It was not represented at the hearing on 13 December 2013. Although its director (the Second Defendant) was so represented, that was not in her capacity as a director of the Foundation. Further, although she did not appear to understand this at that time, there was a major conflict of interest between the Second Defendant in her personal capacity and the Foundation. Further, as regards the Foundation, I have explained that it is not directly (and possibly only indirectly) affected by the dispute as to the English will. If I confine myself to the dispute which directly affects the Foundation, i.e. the dispute about the Dutch will, I consider that the natural forum for that dispute is the Netherlands. Although that conclusion might, without more, justify the refusal of an anti-suit injunction against the Foundation, I will nonetheless go on to consider the other matters which can be relevant on an application for such an injunction.

I will next consider whether the Second Defendant’s and/or the Foundation’s continuation of the Dutch proceedings is vexatious or oppressive. There is a clear case for saying that, at any rate in her personal capacity, the Second Defendant’s continuation of those proceedings would be vexatious and oppressive. She agreed on 13 December 2013 to the English proceedings being amended to deal with the issues as to the Dutch will. It is plainly inappropriate for the same issues as to the Dutch will to be litigated between the Claimants and the Second Defendant in two jurisdictions. However, the Second Defendant accepts, in her personal capacity, that she should not continue the Dutch proceedings. I therefore need to consider whether it is vexatious and oppressive for the Second Defendant, as executrix of the Dutch will, to continue the Dutch proceedings. The Second Defendant’s Amended Defence and Counterclaim in the English proceedings is brought by the Second Defendant in her capacity as executrix of the Dutch will and in her personal capacity. In the first capacity, for example, she asks the court to pronounce for the Dutch will and she seeks a grant of letters of administration with will annexed. Seemingly in her personal capacity, she seeks a declaration that the Dutch will does not revoke the English will and/or rectification of the Dutch will. There is a strong case for saying that the Second Defendant’s continuation of the Dutch proceedings, in her capacity as executrix of the Dutch will, would also be vexatious and oppressive.

I next consider the position of the Foundation. If the Netherlands is the natural forum for the dispute about the Dutch will and the Foundation is directly affected by that dispute, but not directly affected by the dispute about the English will, then it is difficult to say that it is vexatious and oppressive for the Foundation to litigate its dispute in the natural forum of the Netherlands. Although the Second Defendant agreed to the amendment to the English proceedings in December 2013 to extend those proceedings to the dispute about the Dutch will, she was not acting on behalf of the Foundation and I consider that it would be inappropriate to regard the Foundation’s conduct since March 2014 in conducting proceedings in the Netherlands as vexatious and oppressive. It is, of course, procedurally most unfortunate that there should be concurrent proceedings in two jurisdictions about the Dutch will but, as the authorities demonstrate, the unfortunate procedural consequences caused by concurrent proceedings does not necessarily mean that a party is being vexatious and oppressive or that its conduct is unconscionable or an abuse of the process of the English proceedings.

I also need to consider whether there are legitimate juridical advantages for the Foundation in continuing its proceedings in the Netherlands. I have set out earlier the advantages which it puts forward, namely:

My assessment of these suggested advantages is as follows (adopting the above numbering):

My overall assessment of the suggested juridical advantages is that they should only be given limited weight in favour of the Foundation.

Standing back at this point, I consider that the Claimants have not made out a case for an anti-suit injunction against the Foundation. Such an injunction would prevent the Foundation litigating the dispute about the Dutch will in the natural forum of the Netherlands. The Foundation’s proceedings in the Netherlands should not be regarded by the English court as vexatious or oppressive of the Claimants, or otherwise unconscionable or unjust or abusive, even if the juridical advantages of those proceedings to the Foundation are somewhat limited. Further, the English court should be reluctant, on grounds of comity, to grant such an injunction against the Foundation.

I now come to a point that has troubled me although it was not really developed in the course of the argument. The point arises as to the identity of the competent parties in the Dutch proceedings. If, under Dutch law, the Foundation was not the competent claimant in those proceedings then the Dutch court would presumably not allow the Dutch proceedings to continue with the Foundation as the sole claimant. In those circumstances, if I granted an anti-suit injunction against the Second Defendant and if the Dutch court restrained proceedings by the Foundation alone, then the Claimants would achieve their desired result of having both disputes as to the wills litigated in England. Conversely, if the Foundation is a competent claimant in the Netherlands (or even the only competent claimant there) then it would be pointless to grant an anti-suit injunction against the Second Defendant if no such injunction were to be granted against the Foundation.

Although the point which troubles me was not discussed as such, I do have relevant expert evidence as to Dutch law which helps me on this point. This evidence was addressed to a somewhat different point about the appropriate person for the Claimants to serve in relation to the dispute about the Dutch will. I will therefore refer to the positions taken by the parties on that point and the evidence they relied upon.

When Withers wrote to the court on 27 June 2014 on behalf of the Second Defendant, they relied upon a witness statement of a Dutch lawyer (Ms Koele) who had been instructed by the Second Defendant. Ms Koele had prepared a witness statement on behalf of the Foundation. Her witness statement touched on the question of representation of the Foundation in the course of a discussion as to whether the Claimants had to serve the English proceedings on the executrix of the Dutch will (in that capacity) as well as serving the Foundation. Ms Koele stated:

“ … as a matter of Dutch law the executor is the only person empowered to represent the heirs (including a foundation) of the estate in legal proceedings (article 4.145 of the Code). Whilst the foundation will necessarily be named as a party to any such proceedings only the executor can act in its name and not the board of the foundation in its own right (if different persons are appointed)”.

As against that, I was provided with a witness statement from another Dutch lawyer (Ms Tax), instructed by the Claimants. Ms Tax dealt in detail with Article 4.145 of the Dutch Civil Code and the opinion of Ms Koele based upon it. Article 4.145 provides that during the course of his administration of the estate the executor represents the heirs in and out of court in the fulfilment of his duties. Ms Tax said that this meant that the heirs are incompetent to represent themselves in legal proceedings with respect to the administration of the estate. Ms Tax stressed however that the article only applies to the actions of the executor “in the fulfilment of his duties”. It was then said that it is not the duty of the executor to “defend the will”. Ms Tax concluded that the executor is not exclusively entitled to represent the Foundation in the English proceedings in defending the claim that the Dutch will is invalid. This conclusion was expressed in relation to the English proceedings because Ms Tax was dealing with Ms Koele’s evidence as to the requirements of Dutch law as to service of the English proceedings. However, it seems to me to follow from Ms Tax’s explanation of the effect of article 4.145 of the Dutch Civil Code that the Foundation is able to bring its own proceedings in the Netherlands to assert the validity of the Dutch will and it is not necessary for the Second Defendant as executrix to be a party to those proceedings.

There was no further evidence in response to Ms Tax’s witness statement. I consider that I ought to proceed on the basis, in accordance with my understanding of Ms Tax’s evidence, that the Foundation is able to bring its own proceedings in the Netherlands (without the addition of the Second Defendant as a claimant) in relation to the dispute about the Dutch will. As I have considered that it is not appropriate to grant an anti-suit injunction against the Foundation, I will not do so. Although, in other circumstances, there would be a strong case for an anti-suit injunction against the Second Defendant alone, I do not see that there is any point in granting an injunction preventing the Second Defendant remaining a party as executrix to the Dutch proceedings which will in any event continue with the Foundation as a competent claimant.

For the above reasons, I will not grant an anti-suit injunction against either the Foundation or the Second Defendant.

The Claimants seek a freezing order against both the Second Defendant and the Foundation in relation to the deceased’s Dutch assets. On this issue, the relevant facts are as follows. There are (and will continue to be) proceedings in the Netherlands between the parties as to the validity of the Dutch will. The Claimants have obtained attachments in the Netherlands in relation to the deceased’s Dutch assets. In so far as there is an issue as to whether those attachments should continue, that issue can be decided by the Dutch courts. The Dutch courts have already dismissed the Claimants’ application for an interim administrator in relation to the deceased’s Dutch assets on the ground that there was no need for such an administrator while the attachments were in place. In so far as there will be issues as to whether anyone should have access to the Dutch assets to meet the liabilities of the estate, or to fund the Dutch litigation, those issues can be decided by the Dutch courts. In these circumstances, there is no need for the English court to grant a freezing injunction in relation to the Dutch assets and the proper forum for determining whether some form (and, if so, what form) of attachment or freezing relief in relation to the Dutch assets should continue is the Netherlands.

So that the parties know the result of the present applications, I will hand down this judgment in the vacation rather than postponing judgment to next term. It will not be necessary for anyone to attend the hand down of the judgment. I will adjourn all consequential matters to a hearing to be fixed early next term, if such matters are not agreed in the meantime. I will extend the time for appealing this decision so that time does not start to run until 1 October 2014 (with permission to apply for a further extension of time).

This decision obviously has major implications for the case management of the English proceedings. At the hearing before me, the Foundation submitted that if I refused to grant an anti-suit injunction it must follow that I should grant the Foundation a stay of the English proceedings. There was no formal application before the court for such a stay. The Claimants submitted that a stay was not appropriate but that was principally because they submitted that I should grant an anti-suit injunction against the Second Defendant and the Foundation. I consider that I should not grant a stay of the English proceedings or, indeed, make any case management directions in relation to those proceedings without giving the parties an opportunity to discuss and agree what should now be done in relation to those proceedings. If the parties are not able to agree, then I consider that I ought to give the parties an opportunity to make submissions as to the appropriate order to make in the light of my decision not to grant an anti-suit injunction in relation to the Dutch proceedings. In that case, steps will need to be taken to fix a case management conference for the matter to be resolved.