Mandy C Gray v Hamish George Hurley
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lavender |
| Judgment Date | 23 July 2019 |
| Neutral Citation | [2019] EWHC 1972 (QB) |
| Docket Number | Case No: QB/2019/001070 |
| Court | Queen's Bench Division |
| Date | 23 July 2019 |
[2019] EWHC 1972 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lavender
Case No: QB/2019/001070
Jonathan Cohen QC and Marc Delehanty (instructed by Grosvenor Law) for the Claimant
James Bailey QC and Cara Goldthorpe (instructed by Withers LLP) for the Defendant
Hearing date: 25 June 2019
(1) Introduction
I gave judgment (“the First Judgment”) on the jurisdiction issues in this case on 25 June 2019. On that day I heard argument on Ms Gray's application for an anti-suit injunction, restraining Mr Hurley from pursuing the New Zealand Proceedings. This is my judgment on that application. In this judgment, terms defined in the First Judgment have the same meaning as in that judgment.
Mr Cohen submitted that I should grant an anti-suit injunction because:
(1) that was required to protect Ms Gray's right under Article 4(1) of the Judgments Regulation not to be sued outside England, where she is domiciled;
(2) that was the right thing to do in the exercise of my discretion; and/or
(3) it would be contrary to section 6 of the Human Rights Act 1998 for me to do otherwise.
I will address each of these submissions in turn.
I was referred to a number of well-known cases concerning the principles governing the grant of anti-suit injunctions, including: Midland Bank Plc v Laker Airways Ltd [1986] 1 QB 689; Amchem Products Incorporated v. British Columbia (Workers' Compensation Board) [1993] 1 SCR 897, at 933; Donohue v Armco Inc [2002] 1 All ER 749, at [19]; Deutsche Bank AG v Highland Crusader Offshore Partners LP [2010] 1 WLR 1023, at [50]; Star Reefers Pool Inc v JFC Group Co Ltd [2012] 1 CLC 294, at [25]; and Stichting Shell Pensioenfonds v Krys [2015] AC 616, at [17]–[18]. The eight propositions set out by Toulson LJ in paragraph 50 of his judgment in Deutsche Bank v Highland Crusader are a helpful summary of the key principles. His propositions 2 to 6 were as follows:
“2. It is too narrow to say that such an injunction may be granted only on grounds of vexation or oppression, but, where a matter is justiciable in an English and a foreign court, the party seeking an anti-suit injunction must generally show that proceeding before the foreign court is or would be vexatious or oppressive.
3. The courts have refrained from attempting a comprehensive definition of vexation or oppression, but in order to establish that proceeding in a foreign court is or would be vexatious or oppressive on grounds of forum non conveniens, it is generally necessary to show that
(a) England is clearly the more appropriate forum (“the natural forum”), and
(b) justice requires that the claimant in the foreign court should be restrained from proceeding there.
4. If the English court considers England to be the natural forum and can see no legitimate personal or juridical advantage in the claimant in the foreign proceedings being allowed to pursue them, it does not automatically follow that an anti-suit injunction should be granted. For that would be to overlook the important restraining influence of considerations of comity.
5. An anti-suit injunction always requires caution because by definition it involves interference with the process or potential process of a foreign court. An injunction to enforce an exclusive jurisdiction clause governed by English law is not regarded as a breach of comity, because it merely requires a party to honour his contract. In other cases, 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 polices 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.
6. The prosecution of parallel proceedings in different jurisdictions is undesirable but not necessarily vexatious or oppressive.”
It is well-recognised that a party who has made a contractual promise to bring a claim in England will usually be held to that promise, and an anti-suit injunction will usually be granted to restrain any breach of that promise. The position is similar where a party is subject to a statutory, rather than a contractual, obligation to bring a claim in England. The central issue on this application is whether Mr Hurley is subject to a statutory obligation of a kind which can be enforced by injunction to bring his claim against Ms Gray in England rather than anywhere else.
(2) The Judgments Regulation
The Judgments Regulation is the successor to:
(1) the Brussels Convention, i.e. the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters; and
(2) the first Judgments Regulation, i.e. Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Recitals (13) and (15) to the Judgments Regulation state as follows:
“(13) There must be a connection between proceedings to which this Regulation applies and the territory of the Member States. Accordingly, common rules of jurisdiction should, in principle, apply when the defendant is domiciled in a Member State.”
“(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile. Jurisdiction should always be available on this ground save in a few well-defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.”
The principle that jurisdiction is generally based on the defendant's domicile is embodied in Article 4(1) of the Judgments Regulation, which provides as follows:
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”
The operative word is “shall” and the Court of Justice has described this Article as mandatory in nature and as “the fundamental rule of jurisdiction”: Owusu v Jackson [2005] QB 801, at [37] and [45]. It is well established that the exceptions to this fundamental rule are to be narrowly interpreted.
The implications of the mandatory nature of what is now Article 4(1) have taken some time to be appreciated in this country. For instance, in Owusu the Court of Justice held that a court of a Member State was precluded by the Brussels Convention from declining the jurisdiction conferred by what is now Article 4(1) of the Judgments Regulation on the grounds of forum non conveniens. It followed that the Court of Appeal had been wrong to hold otherwise in Re Harrods (Buenos Aires) Ltd. [1992] Ch 72.
The Court of Justice also acknowledged in Owusu that one of the aims of what was then the Brussels Convention was the protection of, inter alia, defendants domiciled in Member States. In relation to the potential application of the forum non conveniens doctrine, the Court said (at [42]):
“The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he could be sued.”
Recital (18) to the Judgments Regulation is in the following terms:
(18) In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.
Sections 3, 4 and 5 of Chapter II of the Judgments Regulation contain special rules which apply respectively to jurisdiction in matters relating to insurance, over consumer contracts and over individual contracts of employment. In particular, Article 22(1) in section 5 provides as follows:
“An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.”
This Article was the one which applied in the two cases relied on by Mr Cohen, i.e. Samengo-Turner v J&H Marsh McLennan (Services) Ltd [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828. Each of those cases concerned a matter relating to an individual employment contract where the employee had entered into a written agreement that the courts of another state (New York or Massachusetts) should have jurisdiction and the employee had been sued in that state, but Article 22(1) took precedence over the jurisdiction agreement and the employee sought and obtained an anti-suit injunction restraining the proceedings in the courts of the other state.
(3) The Effect of a “Breach” of Article 4(1)
Ms Gray is domiciled in England and it is not suggested that any of the exceptions to Article 4(1) apply in the present case. The fundamental rule applies. What is the significance of that fact for Ms Gray's application for an anti-suit injunction? Mr Cohen submits that the effect of Article 4(1) is that Ms Gray was entitled to be sued in England and in no other jurisdiction and that, conversely, Mr Hurley was obliged not to sue her in any other jurisdiction. Mr Cohen submits that, by suing her in New Zealand, Mr Hurley has acted in breach of her right not to be sued...
To continue reading
Request your trial
-
Mandy Gray v Hamish Hurley
...[2019] EWCA Civ 2222 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION Mr Justice Lavender [2019] EWHC 1972 (QB) Royal Courts of Justice Strand, London, WC2A 2LL Before: Lord Justice Patten Lord Justice Hickinbottom and Lord Justice Peter Jackson C......
-
Bilal Khalifeh v Blom Bank S.A.L. (a Société Anonyme Libanaise incorporated under the laws of Lebanon)
...Samengo-Turner (but not Petter) was decided per incuriam. It was submitted that both cases had been distinguished in Gray v Hurley [2019] EWHC 1972 (QB) and [2019] EWCA Civ 2222, especially per Peter Jackson LJ at paras 48, 50 and 52. For the moment, and without ruling on the points at th......
-
Table of cases
...560, 562 Gray v Canada (Attorney General), 2020 FC 1037 .............................................. 63 Gray v Hurley, [2019] EWHC 1972 (QB) .............................................................271 Great Canadian Railtour Co v Teamsters Local Union No 31, 2011 BCSC 973 .................
-
Anti-Suit Injunctions
...properly be granted by an English court to restrain a person from pursuing proceedings in a foreign and applied in Gray v Hurley , [2019] EWHC 1972 (QB) at paras 4–5. 20 Airbus Industrie , above note 18. 21 Airbus Industrie GIE v Patel , [1997] 2 Lloyd’s Rep 8 (CA). THE LAW OF EQUITABLE REM......