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

I can deal with the next basis on which WRL and the Directors seek ASI relief comparatively briefly. The parties were content, at least at first instance, to adopt the summary of the law relating to quasi-contractual ASIs which I gave in QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm), [12]-[27]. While much of that summary was specifically concerned with claims under insurance contracts by reason of foreign direct action statutes, the principles which emerge from the authorities referred to in QBE can be summarised as follows:

The “direct action” statute cases have generally been concerned with the question of whether the victim of the insured wrong, or the state standing in the victim’s shoes, is, as a matter of substance, enforcing the contract of insurance to which the wrongdoer is a party, or an independent statutory right. For that reason, many of the authorities (including QBE) address themselves to the question of whether the claim advanced in the non-contractual forum is contractual in nature, and the type of injunction in question is often referred to, to the dismay of some, as a “quasi-contractual” injunction. However, I accept that ASI relief of this kind is not limited to cases in which the right asserted in a non-contractual forum is a claim in contract.

That point is well made in the decision of Mr Simon Salzedo KC, sitting as a Deputy High Court Judge, in Aon UK Limited v LaMia Corporation Srl [2022] EWHC 3323 (Comm). A “Terms of Business Agreement” between LaMia and Aon contained an EJC in favour of the courts of England and Wales. Proceedings were brought against Aon in tort in Florida by victims of an air crash to whom LaMia had assigned its rights. Mr Salzedo KC held that the claims brought in Florida engaged the quasi-contractual basis for ASI relief:

Respectfully, I agree with that analysis. The Florida plaintiffs were seeking to exercise rights derived from LaMia. Whether those rights were contractual or tortious claims against Aon, they were in each case conditioned by the EJC in the TOBA, and it was unconscionable for the Florida plaintiffs to assert those rights against Aon without complying with the dispute resolution requirements which conditioned them.

However, this does not assist the Directors. JPM is not asserting derived rights against the Directors at all, but rights which (if they have any merit) are originally JPM’s. Nor do the claims brought by JPM against the Directors assert contractual rights arising under the SHA. Rather they assert tortious obligations arising under the GCC which do not depend on establishing a breach of a contractual or conventional tortious obligation, still less one conditioned by the EJC.

While WRL and the Directors rightly make the point that the availability of the quasi-contractual anti-suit jurisdiction depends on the classification of the right asserted as a matter of substance and its characterisation as a matter of English rather than foreign law (see e.g. London Steam-ship Owners’ Mutual Insurance Association Ltd v Spain (The Prestige) [2015] EWCA Civ 333, [12], [14] and [29]-[30]), it is the nature of the right asserted, rather than the facts said to give rise to it, which matters. The mere fact that it was open to JPM to bring claims against WRL with a similar subject matter to those brought against the Directors, which claims would have been subject to clause 42 of the SHA, is not sufficient to bring the derived rights principle into play. The same set of facts will frequently give one party claims against alternative defendants, some subject to a dispute resolution clause, and others not so subject. For ASI relief to be available in the latter case, it is necessary to satisfy the “more onerous and more nuanced” test of showing the foreign proceedings are vexatious and oppressive (cf. QBE, [13], [16]).