[2025] EWHC 1368 (Comm)

The principles for the granting of anti-suit relief on the vexation and oppression basis are summarised by Males LJ in SAS Institute Inc v World Programming Ltd [2020] EWCA Civ 599 at [90]-[91], [103] and [108]:

It has been noted that the categories of factors which may amount to vexation and oppression are not closed (Elektrim SA v Vivendi Holdings EWCA Civ 1178, [83]).

Even in cases in which injunctive relief is not sought on a contractual or quasi-contractual basis, the fact that the foreign proceedings involve the circumvention of an agreement for arbitration with an English seat, or an English EJC, can itself be relevant in determining whether the commencement and pursuit of the foreign proceedings is vexatious and oppressive, as well as establishing the necessary “sufficient interest” of the English court to act. In Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm), Andrew Burrows QC relied upon the EJCs in the head and sub-voyage charterparties and the bills of lading, which pointed to England as “the natural forum” ([34(i)], and found that Xiang Da had “manipulated its third party claims to try to avoid being caught by the exclusive jurisdiction clause in the Clearlake charter”, the claim being a “procedural manoeuvre designed to evade the exclusive jurisdiction clause” ([34(ii)]).

The second of those considerations featured prominently in Renaissance Securities. At [55], Singh LJ stated that he saw “some force in the submission made by Mr Paul Lowenstein KC for the Appellant that the proceedings in Russia … are vexatious and oppressive” even if not in breach of the arbitration agreements, because “they do appear to be designed to circumvent and undermine the effect of those agreements.” At [56] he identified three reasons why the court should be prepared to contemplate granting an anti-suit injunction in that case:

In relation to that last point, at [59], Singh LJ referred to the following passage in HHJ Pelling KC’s judgment in Barclays Bank plc v PJSC Sovcombank [2024] EWHC 834 (Comm), [25]:

“It might have been said on behalf of the defendants or Sovcombank at any rate that commencing proceedings in England deprives them of a legitimate juridical advantage because the Russian courts will disregard as a matter of public policy the sanctions laws imposed by English law. If and to the extent that is relied upon then, in my judgment, it is a proposition to be rejected. The parties having agreed English law, to attempt to litigate in a foreign jurisdiction where full effect is not given to English law including therefore sanctions law is not to seek to obtain a legitimate juridical advantage but, on the contrary, is to seek to obtain an illegitimate juridical advantage, a point which has been recognised in the case law as a reason for treating a claim brought in such a jurisdiction as vexatious and oppressive.”

At [60] Singh LJ said he agreed “with the principle which lies behind that passage” which was not “confined to cases in which the parties have agreed that English law should apply to their dispute because, in my judgment, for a party to seek to circumvent the sanctions regime of this country is to seek an ‘illegitimate juridical advantage’.” However, he did not reach a final conclusion on the “vexatious and oppressive” anti-suit application due to evidential uncertainties as to whether the appellants still had a sufficient interest in the application (there having been company sales in the period since the first instance judgment). That was also the view of Males LJ, who said that for that reason “it is unnecessary to decide whether an injunction should be granted on the ground that the proceedings brought by the Respondents … in Russia are vexatious and oppressive” but that “at first sight, there appears to be a powerful case that they are”.

Singh LJ’s judgment refers to the illegitimate advantage which a party who has agreed that English law will apply to a dispute would obtain by commencing proceedings in another jurisdiction where a different law would apply. Where the application of foreign law to a particular dispute is exorbitant and unnatural, this can be a factor supporting anti-suit relief, although the mere fact that the content of the foreign law which will be applied is different to English law will not (Thomas Raphael KC, The Anti-Suit Injunction (2^nd), [5.30]-[5.31]). The interest of the English courts in the protection of contractual rights governed by English law is also manifest in the rule of public policy in Adams v National Bank of Greece SA [1961] 1 AC 255, by which retrospective legislation in the country of the debtor’s domicile was held to be incapable of discharging an obligation governed by English law.