CL-2025-000010 and CL-2025-000091 - [2025] EWHC 1842 (Comm)

The basic principle is that the jurisdiction is to be exercised "when the ends of justice require it".

Established categories of case where an injunction may be appropriate (which may overlap) include cases where an injunction is necessary to protect the jurisdiction of the English court and cases where the pursuit of foreign proceedings is regarded as vexatious or oppressive, but the jurisdiction is not confined to these categories and must be applied flexibly.

Great caution must be exercised before such an injunction is granted, at any rate in cases where the injunction is not sought in order to enforce an arbitration or exclusive jurisdiction clause, because of the requirements of comity.

When an anti-suit injunction is sought on grounds which do not involve a breach of contract, comity, telling against interference with the process of a foreign court, will always require careful consideration.

Comity requires that in order for an anti-suit injunction to be granted, the English court must have "a sufficient interest" in the matter in question. Often that sufficient interest will exist by reason of the fact that the English court is the natural forum for the determination of the parties' dispute. In a case where the injunction is sought in order to protect the jurisdiction or process of the English courts, the existence of a sufficient interest will generally be self-evident.

The categories of factors which may amount to vexation and oppression are not closed (Elektrim SA v Vivendi Holdings1 Corp [2008]EWCA Civ 1178, [83]).

At [146], I added my own observation that 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.

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.

“Single forum cases” are cases "when the cause of action relied on in the foreign court cannot be advanced in England, and there is no cause of action available (as a matter of English domestic law or the law applicable under its choice of law rules) to the claimant to allow him to win before the English courts …".

Particular caution is required before granting ASI relief in this context. As the only possible forum is the foreign forum, the risk of injustice is very real, because the issue for the court is not in which forum the claims should proceed, but rather whether they should proceed at all.

The availability of relief in the foreign court on a basis which it is easier to satisfy than analogous relief in this jurisdiction will (at least in some cases) be analogous to a "single forum" case, requiring a similar level of caution.

There are two further paragraphs I should refer to. At [49], Trower J said that “commencing proceedings abroad which raise issues that are already subject to proceedings in England is also capable of amounting to vexatious or oppressive conduct, but that is not necessarily the case” and that “there is no presumption that a multiplicity of proceedings is vexatious, and that proceedings are not to be regarded as vexatious merely because they are brought in an inconvenient place”.

At [50], he referred to the need “to strike an appropriate balance between the possible injustice to the parties depending on whether the anti-suit injunction is granted or refused”, and stated that “in carrying out that exercise, only credible and legitimate advantages are to be given weight, because it is not unjust to deprive a party to foreign proceedings of illegitimate or theoretical advantages or ones which are hopelessly or cynically invoked.”