CL-2024-000452 - [2025] EWHC 2217 (Comm)

PRINCIPLES

It is well established that the English court has the power to grant an AEI to restrain a party from seeking to enforce a foreign judgment, even in respect of enforcement in other foreign countries: see Ellerman Lines v. Read [1928] 2 KB 144 and Google v Tsargrad [2025] EWHC 94 (Comm).

In Google, I summarised the applicable principles in this way:-

“82.

Viewing this body of case law as a whole, it is possible to identify the following key principles relating to the grant of anti-enforcement injunctions.

i)

The fundamental question, pursuant to section 37(1) of the Senior Courts Act 1981, is whether it is just and convenient to grant an injunction.

ii)

In principle, the enforcement of a judgment obtained in breach of an exclusive jurisdiction clause or an arbitration agreement can be restrained by injunction (see Ellerman Lines and Bank of St Petersburg). The order operates in personam: like an anti-suit injunction, it is directed to the party, not the foreign court or courts.

iii)

There is no distinct jurisdictional requirement that the case be exceptional (see SASInstitute § 93).

iv)

However, anti-enforcement injunctions are rarely granted, because delay and/or comity considerations usually make it inappropriate to grant such an injunction.

v)

As to comity, an anti-enforcement injunction (like an anti-suit injunction) has the effect of indirectly interfering in the processes of a foreign court, and hence a strong step for which clear justification must be required (SAS Institute § 101).

vi)

The fact that the foreign proceedings were brought in breach of the respondent’s obligations under an exclusive jurisdiction clause or arbitration agreement is capable of amounting to such a justification.

vii)

It would be particularly intrusive and inconsistent with comity to grant an injunction indirectly preventing enforcement by and in the territory of a foreign court which has already proceeded to judgment (see, e.g., the observations of Neill LJ in Ellerman Lines at p437rhc quoted earlier; Masri § 93; Ecobank § 136 last sentence). Moreover, such an injunction would be liable to result in the resources and time of the foreign court, as well as the respondent, having been wasted, providing a further strong reason against the grant of such relief (SAS Institute § 104; Ecobank §§ 123, 124, 126, 127, 132, 133, 134, 135).

viii)

Where an anti-enforcement injunction prevents enforcement in one or more third countries, the general point about indirect interference with a foreign court applies ((v) above), in relation to both the foreign court which gave judgment and the putative enforcement court. However, if the injunction is sought before or at a very early stage of those enforcement proceedings, concerns about waste of resources and time of the enforcement court should not arise. Such concerns may still arise in relation to the court which gave judgment and in relation to the respondent, but that will depend on the circumstances. The position may be different, for example, if the injunction is not designed to prevent enforcement of the judgment in its entirety, and hence does not render the proceedings leading to judgment a waste of time and resources (SAS Institute § 106).

ix)

Where the respondent seeks to enforce in a third country, it has been stated that the right to enforce should depend primarily on the law of the enforcement court, which the English court should not pre-empt by granting an injunction (The “Eastern Trader” at p.602 rhc; Akai at p.1533; Ecobank § 136 penultimate sentence). However, in the case of an anti-suit injunction, it is not regarded as a bar to injunctive relief that the overseas court ought instead to be left to make its own jurisdictional decision (applying its own rules as to the effect of exclusive jurisdiction clauses and arbitration agreements). It is arguable that it is no more intrusive indirectly to interfere with an overseas court’s enforcement of a foreign judgment than with an overseas court’s adjudicative jurisdiction over a dispute. In any event, there is a cogent argument that an applicant who has contracted for an exclusive jurisdiction clause or arbitration agreement has a prima facie entitlement not to be troubled by either substantive or enforcement proceedings elsewhere, and accordingly to seek to hold the respondent to its contractual promise: a view which I consider to be consistent with the observations of Longmore LJ in Bank St Petersburg § 35 quoted earlier).

x)

It is relevant to consider whether there is a good reason for the applicant not having applied sooner for injunctive relief (by way of anti-suit injunction or anti-enforcement injunction) (as recognised implicitly in Ecobank §§ 128), or whether the applicant was simply hoping to have two bites at the cherry (Ecobank §§ 129-130).

xi)

Delay is an important, and sometimes decisive, factor against the grant of an injunction, but it is not necessarily a bar to relief. Its weight will depend on all the circumstances (SAS Institute § 113; Ecobank §§ 119, 122 and 137). In assessing the circumstances, account will need to be taken of the considerations identified above. The relevant circumstances will include whether the anti-enforcement injunction seeks to prevent enforcement within the territory of the judgment court or only elsewhere; whether the injunction seeks to prevent enforcement of the judgment in its entirety; whether (if obeyed) it will result in the proceedings leading up to judgment having been a waste of time and resources; and whether there is a satisfactory explanation for the applicant not having applied sooner for injunctive relief.”

Counsel for the Claimants fairly pointed out that, according to Raphael, The Anti-Suit Injunction (2nd ed., 2019) §§5.65-5.72:-

As to (i) above, for the reasons set out in Google §§ [58], [68] and [69], I do not consider the AEI jurisdiction to be limited to cases of actual or alleged fraud. However, the claim in the present case is in any event squarely based on alleged fraud.

As counsel for the Claimants also fairly points out, the cases on AEIs concern restrain of enforcement of foreign judgments, and counsel was unable to find a case where an AEI has been granted to restrain enforcement of an English judgment. However, I see no principled reason why such an order should not be available. Indeed, some (though not all) of the comity considerations applicable to enforcement of foreign judgments are less likely to be of concern in relation to an AEI granted by an English court in respect of an English judgment.

An AEI is sought in the present case not on contractual grounds but on the basis that enforcement of the Default Judgment before the outcome of the present claim to set it aside for fraud would be vexatious and oppressive.

In a dictum in Investcom Global Ltd v PLC Investments Ltd [2024] EWHC 2505 (Comm), [2024] Bus LR 1764 at [81], I accepted a submission that the usual test for a non-contractual anti-suit injunction (assuming the court has jurisdiction) is the American Cyanamid one requiring demonstration of a serious issue to be tried, citing Joint Stock Asset Management Company Ingosstrakh Investments v BNP Paribas SA [2012] EWCA Civ 644 §§ 49 and 57. Having heard submissions on the point in the present case, I consider that to have been incorrect. In Ingosstrakh Investments, Blair J had granted an anti-suit injunction on the ground that the foreign proceedings involved vexatious, oppressive and unconscionable conduct on the part of the respondent. At [83]-[84] of his judgment, Stanley Burnton LJ (with whom the other members of the Court of Appeal agreed) said this:-

“83.

I have already considered most of the Appellant's contentions on its appeal against the grant of injunctive relief. The only remaining submission is that the judge applied the wrong test when deciding that such relief should be granted: he applied the balance of convenience test when he should have required the Bank to establish that there was a high probability of its succeeding in establishing its case for a final anti-suit injunction. I reject this submission. In his second judgment the judge said:

‘7.  Insofar as the merits are concerned, the first question on this application for an interim injunction is the test that I should apply. This is alluded to in various parts of the judgment (see for example paragraph 92). The possibilities are the American Cyanamid test, or the high probability of the success test which is mentioned, for example, in the Midgulf International Ltd v Groupe Chimique Tunisien case and discussed in The Anti-Suit Injunction by Thomas Raphael to which I was referred by Ms Selvaratnam QC.

That passage indicates that the applicant for an interim injunction on the ‘vexatious and oppressive’ ground (like an applicant relying on a contractual provision) must generally show a high probability that it will succeed in establishing its case for a final anti-suit injunction at trial.

The ‘high probability’ test is appropriate because an interim anti-suit injunction will often be decisive of the issue by determining, in practice, where the substantive dispute is tried (see, e.g., Raphael § 13.37). The position may be different where the order is granted on a temporary basis in order to ‘hold the ring’ pending a further hearing or trial and the interim order will not in practice be determinative of the outcome (ibid. § 13.38 and 13.48), in which circumstances an American Cyanamid approach may well be appropriate.