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

Had this been the sole basis on which ASI relief was available to the Directors (with the result that no issue as to the application of PD 6B para. 3.1(4B) needs to be considered), then a difficult question of jurisdiction would have arisen. Fitting injunction applications on this basis within the service out regime has been a long-standing problem.

In Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry [2013] EWHC 328 (Comm), as I noted at [139] above, it was argued that the Jordanian proceedings were vexatious and oppressive because they would circumvent the application of English law and the beneficial consequences to Navig8 (on its own case, a non-party to the bill of lading contract) of the application of English law. As well as rejecting the contention that the foreign proceedings were vexatious and oppressive, at [14] Andrew Smith J rejected the contention that this claim fell within PD 6B para. 3.1(6)(c):

“There is no dispute that Navig8 have (at least) a sufficiently strong argument for present purposes that the contracts evidenced by the bills of lading are, under English private international law, governed by English law. The question is whether they have a good arguable case that the claim for an injunction is “in respect of” them. In my judgment they do not. In Alliance Bank JSC v Aquanta [2012] EWCA Civ 1588, where claims were brought in fraud by claimants who alleged that they were induced to make security contracts governed by English law, Tomlinson LJ, giving the judgment of the court, said (at para 71) that ‘unless the claimant is suing in order to assert a contractual right or a right which has arisen as a result of non-performance of a contract, his claim is not in this context properly to be regarded as one made in respect of a contract’. When this test is applied, the claim for an injunctive relief on the grounds that foreign proceedings are vexatious or oppressive falls outside paragraph 3.1(6)(c): no contractual right is asserted and no right resulting from any (actual or threatened) non-performance of a contract is asserted.”

Where proceedings by one party to an EJC against a third party are said to be vexatious and oppressive as regards the other party to the EJC, and the essential vice of the oppression is the circumvention of the EJC, then I see strong grounds for contending that they are claims which meet the requirements of CPR 6.33(2B)(c). Both claimant and defendant are parties to the EJC, and the connection between the claim and the EJC (and the contract containing it) is a close one. Indeed, the fundamental premise of such a claim is that the claimant has been deprived of the effective benefit of its contractual rights, albeit not necessarily through a breach of contract (viz the implied term issue canvassed in JP Morgan).

What of the position where the claim is brought not by a party to the EJC, but an affiliate of such a party, albeit against someone who is party to the EJC? Undoubtedly the claim is more difficult. In JP Morgan, [172], without the benefit of argument, I made the following observation:

“To the extent that any issue had arisen as to the availability of these arbitration specific gateways so far as applications under the vexation and oppression jurisdiction are concerned (and none was raised), where an EJC or arbitration agreement governed by English law is a central feature of the alleged vexation and oppression, which in essence involves a complaint of improper circumvention of that agreement, I would note that CPR Practice Direction 6B para 3.1(6)(c) applies where a claim is “in respect of” a contract governed by English law, words of obvious width on which I commented in the QBE case.”

Where the essential vice of the foreign proceedings is the improper circumvention of an EJC, and the proceedings are brought against a party to the EJC who has, to that extent, voluntarily connected itself to this jurisdiction, I remain of the view that an application for ASI relief on the vexatious and oppressive basis would fall within this gateway, and arguably (cf the debate at [158] above) within CPR 6.33(2B)(c). I accept, however, that the multi-factorial analysis inherent in the identification of vexation and oppression may make line drawing difficult, and that even when the essential vice is circumvention, other factors are likely to be prayed in aid to establish that essential vice. For present purposes, I should note that if no gateway is available for service out in vexatious “forum circumvention” cases, that will make the issue of whether an appropriate term can be formulated and implied a vital one (cf. JP Morgan, [111(ii)]).