Med Marine v Castillo

This is the claimant’s application for an anti-suit injunction in support of an exclusive jurisdiction clause in favour of the English Courts.

The background is a contract in a booking note signed on 5^th August 2012 by which the claimant, a company which provides tugboat services, agreed to provide services to the first defendant, the registered owner of a vessel called the Conti Cartagena. The second defendant is the charterer of the vessel.

On 7^th August 2012 it appears that an incident occurred while the vessel was being manoeuvred by tugs while in port. Since then, there has effectively been a dispute as to jurisdiction as between the courts in England and the courts in Turkey. The incident happened at a port called Yalova in Turkey. However, the contract contains an exclusive English jurisdiction clause. It reads as follows:

“9(a) The agreement between the Tug owner and the Hirer is and shall be governed by English law and the Tug owner and the Hirer hereby accept, subject to the proviso contained in sub-clause (b) hereof, the exclusive jurisdiction of the English Courts…

(b)

No suit shall be brought in any jurisdiction other than that provided in sub-clause (a) hereof save that either the Tug owner or the Hirer shall have the option to bring proceedings in rem to obtain the arrest of or other similar remedy against any vessel or property owned by the other party hereto in any jurisdiction where such vessel or property may be found.”

Notwithstanding that clause, proceedings on behalf of the owners were commenced before the Istanbul Courts on 1^st August 2013. Jurisdiction was challenged by the claimants. On 13^th September 2013, proceedings were commenced in the English Courts.

On 27^th November 2013 the defendants issued an application contesting the English jurisdiction. This application was dismissed by the Commercial Court on 28^th March 2014. Permission to appeal against that ruling was refused by the English Court of Appeal on 6^th January 2015.

Meanwhile, on 8^th May 2014, the Commercial Court in Istanbul rejected jurisdiction accepting the validity of the agreement between the parties to refer disputes to the English Courts. That decision was subject to an appeal by the defendants. However, it appears that the claimant’s lawyers in this country were not aware of this at the time. They became aware in 2015 and asked by letter of 1^st June 2015 that the defendants desist with the appeal in Turkey. This request did not receive an answer and, on 30^th June 2015, the claimants brought this application for an anti-suit injunction.

Normally, and for obvious reasons, this kind of application is heard by the court quickly. One matter which the English Court takes into account in considering whether or not to grant an anti-suit injunction is the stage which the challenged proceedings have reached. What appears to have happened in this case is that, since the defendants have been represented in the Commercial Court proceedings in England, the date for the hearing was fixed so as to be convenient for both parties. This led to a hearing date being fixed for 30^th October 2015. There was communication between the parties and the court in the ensuing months. It is unnecessary to recount the detail. In the circumstances, the court did not accede to the claimant’s request for an expedited hearing date nor did the court accede to the defendant’s request for an adjournment of the hearing on 30^th October 2015. I note that at this point the defendants were represented by different lawyers.

The appeal in the Istanbul Courts was due to be heard on 27^th October 2015. By a letter to the court that day, the lawyers acting for the defendants asked for the hearing due on 30^th October 2015 to be adjourned. They did not, however, appear at the hearing of 30^th October 2015. The matter came before me on that day and the claimant’s position was that the matter should go ahead. The claimants appeared to be confident that the appeal against the decision in their favour in Turkey would be dismissed. In that eventuality, and subject to any further appeal in Turkey, these anti-suit proceedings would fall away. Since the court in Istanbul had heard the appeal by then and a decision was awaited, it appeared to me right to stand the matter over for a short time. The evidence was that the court’s decision would be forthcoming within three weeks. I therefore stood the matter over until 20^th November 2015. That is the hearing which I have before me this morning.

As on the previous occasion the defendants are not represented. They have sent a further letter to the court, dated 19^th November 2015. This letter confirms evidence filed on behalf of the claimants to the effect that the appeal had been allowed. No reasons have been forthcoming at this stage and the letter indicates that the reasoning is expected “in the near future”. In those circumstances, the defendant’s lawyers “suggest any injunction would not be appropriate”.

In the fifth witness statement filed in support of this application on behalf of the claimant, dated 18^th November 2015, reference is made to the hearing on 30^th October 2015. That witness statement ascribes to myself the proposition that I was “untroubled by the idea that the English Court would grant relief after a successful appeal in Turkey”. That was not and is not the view of this court at all. It is unfortunate that, for reasons I have explained at some length, the application for an anti-suit injunction did not come before this court until a few days after the hearing of the appeal in Turkey. If there had not been a good explanation for this timing I do not think that this court would have entertained an application for an anti-suit injunction at all. However, unfortunate though it is, I am satisfied that the mis-timing of this hearing is not the claimant’s fault. The problem has arisen because the defendants have continued to pursue proceedings in Turkey notwithstanding the exclusive jurisdiction clause in favour of the English Court.

The principles upon which the court acts in this kind of case are well-established. A party has a right to have the terms of an exclusive jurisdiction clause enforced. The authorities make clear that, absent strong reasons, a party in these circumstances is entitled to have the jurisdiction clause enforced by way of injunction. No reasons, in my view, have been advanced by the defendants which justify ignoring the terms of the contract between the parties. Despite the timing, I am satisfied that this is an appropriate case for an anti-suit injunction.

I should make this plain: This court does not purport in any way to interfere with the process of the Turkish Courts. It acts solely in personam to enforce the terms of a contract which the defendants freely entered into. The effect of the anti-suit injunction is to require the defendants to observe the terms of that contract. That is the ruling of the court.