Daiichi Chuo Kisen Kaisha v Chubb Seguros Brasil S.A. (formerly ACE Seguradora S.A.)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 15 May 2020 |
| Neutral Citation | [2020] EWHC 1223 (Comm) |
| Docket Number | Case No: CL-2020-000227 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 15 May 2020 |
THE HONOURABLE Mr Justice Henshaw
Case No: CL-2020-000227
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Rolls Building,
Fetter Lane
London, EC4A 1NL
Natalie Moore (instructed by Ince Gordon Dadds LLP) for the Claimant
Tom Bird (instructed by Birketts LLP) for the Defendant
Hearing date: 7 May 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
| (A) INTRODUCTION | 2 |
| (B) BACKGROUND FACTS | 2 |
| (C) SUBSEQUENT EVENTS | 5 |
| (D) APPLICABLE PRINCIPLES: GRANT OF ANTI-SUIT INJUNCTIONS | 16 |
| (E) ANALYSIS: GRANT OF ANTI-SUIT INJUNCTION | 22 |
| (F) SCOPE OF THE INJUNCTION: NOBLE RESOURCES | 25 |
| (G) CONCLUSION | 26 |
(A) INTRODUCTION
This judgment follows the expedited hearing of the Claimant's claim for a final mandatory anti-suit injunction requiring the Defendant (“ Chubb”) to discontinue proceedings it has brought and continued to pursue in Brazil against the Claimant (“ Daiichi”) and a third party, Noble Resources International SA (“ Noble Resources”), allegedly in breach of an undertaking (“ the Undertaking”) given to Daiichi on 5 December 2017.
At the end of the hearing before me on 7 May 2020, time did not permit the delivery of an ex tempore judgment. The indications from the parties were that it would be useful for a decision to be given then, with reasons to follow. I therefore gave my decision, namely that the claim succeeded, with reasons to follow a few days later.
For the reasons given below, I concluded that it was appropriate to grant the anti-suit injunction sought, in order to give effect to the Undertaking, having taken account of considerations of justice as between the parties and comity towards the Brazilian court.
(B) BACKGROUND FACTS
Chubb is a Brazilian insurance company. It was the insurer of a cargo being carried from Brazil to China on board the m/v “ Southern Explorer” (“ the Vessel”) pursuant to two bills of lading dated 1 August 2014.
The underlying dispute arises from a collision in September 2014 involving the Vessel, as a result of which the cargo is said to have been damaged.
The Vessel's registered owner, Fair Wind Navigation SA (“ Fair Wind”), was the contractual carrier of the cargo. Fair Wind had time chartered the Vessel to Daiichi for a period of 13 years. Daiichi had in turn voyage chartered the Vessel to Noble Chartering Ltd (“ Noble Chartering”). Noble Resources, a related company, used the Vessel to perform a shipment under a contract of affreightment between Noble Resources and CSN Handel GmbH.
On 29 March 2016 cargo interests, including Chubb, commenced London arbitration proceedings against Fair Wind under the bills of lading, which were owners' bills issued on behalf of Fair Wind. It was common ground in the proceedings in England between Chubb and Fair Wind/Mizuho Sangyo Co Ltd (“ Mizuho”), to which I refer below, that the bills of lading incorporated an arbitration clause, providing for London arbitration, from either the Daiichi/Noble Chartering charterparty or the Noble Resources/CSN Handel contract of affreightment.
However, rather than pursuing those arbitration proceedings, on 11 November 2016 Chubb brought a claim in Brazil against Mizuho (the managers of the Vessel), Daiichi and Noble Resources in respect of losses arising out of the cargo damage and salvage expenses. The claim including interest is for something in the region of US$2.7 million.
On 22 August 2017 Fair Wind and Mizuho issued an arbitration claim form in this court seeking an anti-suit injunction restraining Chubb (then named Ace Seguradora S.A.) from pursuing the Brazilian proceedings against Mizuho. One of the principal issues in that action concerned the true nature of the claim being pursued in Brazil. The evidence of Daiichi's expert in Brazilian law is that, whilst Daiichi and Noble Resources are not parties to the bills of lading, Chubb's claims in Brazil are brought under and by reference to the contracts contained or evidenced in the bills of lading.
Chubb argued in the Fair Wind/Mizuho proceedings that the claim was not contractual but tortious, and two days before the final hearing of that arbitration claim, Chubb's then solicitors notified Mizuho/Fair Wind of Chubb's intention to apply to amend the claim in Brazil to clarify that it was advanced in tort only.
After hearing oral arguments on 27 October 2017, Knowles J granted an anti-suit injunction (“ the Knowles Order”). This injunction restrained Chubb from pursuing the claim “ as currently formulated against [Mizuho] in the [Brazilian proceedings]” (§ 5) and ordered Chubb not to “ commence or pursue, or procure or assist the commencement or pursuit of any claim of a contractual nature arising out of or in connection with the Bills of Lading against [Mizuho] other than by way of arbitration in London” (§ 6). The Knowles Order thus left open the possibility of Chubb pursuing a non-contractual claim against Mizuho in Brazil.
On 22 November 2017 Daiichi's solicitors wrote to Chubb's then solicitors demanding an undertaking restraining it from pursuing the claim “ as currently formulated against Mizuho Sangyo Co Ltd”. Daiichi claimed to be in materially the same position as Fair Wind and Mizuho. The evidence shows that Daiichi had on 17 November 2017 instructed its solicitors to seek an anti-suit injunction, and in its open communications of 22 November and 1 December 2017 Daiichi threatened to apply for such an injunction unless an undertaking were given. The correspondence indicates that Chubb made clear that it wished to avoid a court hearing in circumstances where it said it intended to pursue only non-contractual claims. After further correspondence, Chubb provided the Undertaking which – mirroring the Knowles Order – provided:
“2. [Chubb] irrevocably undertakes that:
(a) [Chubb] (whether by itself or by its directors, officers, employees or agents) will not pursue, or procure or assist the pursuit of the claim as originally formulated against Daiichi Chuo Kisen Kaisha (“Daiichi”) and/or Noble Resources International SA (“Noble Resources”) in the proceedings brought in the 5th Civil Court of the Judicial District of Santos, Brazil with process no. 1034919-05.2016.8.26.0562 (“the Brazilian Proceedings”).
(b) [Chubb] (whether by itself or by its directors, officers, employees or agents) will not commence or pursue, or procure or assist the commencement or pursuit of any claim of a contractual nature arising out of or in connection with the Bills of Lading against Daiichi and/or Noble Resources other than by way of arbitration in London.
For the avoidance of doubt, this undertaking does not give consent and should not be construed as giving consent to the proposed amendments to the claim in the Brazilian Proceedings as filed by Ace on 29 November 2017.
This undertaking shall be governed by and construed in accordance with English law and any disputes arising out of or in any way connected with this undertaking shall be submitted to the exclusive jurisdiction of the English High Court.”
Although it is not stated on the face of the Undertaking, it is common ground on the witness statements before me (see, in particular, §§ 1 and 49 of the statement of Mr Macfarlane on behalf of Daiichi and § 13 of the statement of Ms Holsgrove on behalf of Chubb) that the Undertaking was given in consideration of Daiichi refraining from applying for an anti-suit injunction. That would in any event be the natural inference from the contents of the Undertaking and the circumstances in which it was given as outlined above.
It was not disputed before me that the Undertaking was intended to be binding, as is evident from its contents (including the law and jurisdiction clause it contains) and the circumstances in which it was given. It is also fair to infer that Daiichi acted on the Undertaking by refraining from seeking its own anti-suit injunction.
The Undertaking did not expressly require Chubb to take positive steps to discontinue the Brazilian proceedings, no doubt because Chubb had indicated that it intended to pursue non-contractual claims in Brazil by way of an amended claim. It remained open to Chubb to seek to make such an amendment, and equally open to Daiichi to oppose any such amendment, the terms of the Undertaking (as quoted above) having made clear that Daiichi did not consent to the proposed amendments. The submission made on behalf of Chubb at the hearing before me that Daiichi's opposition to the proposed amendments, having obtained the Undertaking and in the light of the Knowles Order, was an unfair tactical manoeuvre, is baseless. Daiichi had reserved its position on the proposed amendments perfectly clearly.
Chubb did then proceed to apply to amend its claim in the Brazilian proceedings to advance non-contractual claims, and Mizuho and Daiichi filed objections to Chubb's application on 15 December 2017. On 30 January 2018 Noble Resources noted that Mizuho and Daiichi's objections were sufficient to dispose of the application, which required all three defendants' consent.
After an initial dismissal and two appeals, the Brazilian Superior Court of Justice finally rejected the amendment application in a decision that became final and unappealable on 26 June 2019. From that moment on, there was no...
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