Masri v Consolidated Contractors International Company SAL
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke Mr. Longmore,Lawrence Collins L JJ. |
| Judgment Date | 06 June 2008 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 June 2008 |
[2008] EWCA Civ 625
Court of Appeal (Civil Division).
Sir Anthony Clarke Mr. Longmore and Lawrence Collins L JJ.
Alexander Layton QC and Thomas Raphael (instructed by Olswang) for the appellants.
Simon Salzedo and Colin West
The following cases were referred to in the judgment of Lawrence Collins LJ:
Airbus Industrie GIE v Patel [1998] CLC 702; [1999] 1 AC 119.
Alfred C Toepfer International GmbH v Molino Boschi Srl [1996] CLC 738.
Amoco (UK) Exploration Ltd v British American Offshore LtdUNK [1999] 2 Ll Rep 772.
Bank of Tokyo v KaroonELR [1987] AC 45.
Booth v LeycesterENR (1837) 1 Keen 579; 48 ER 430.
Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp LtdELR [1981] AC 909.
British Airways Board v Laker Airways LtdELR [1984] QB 142 (QB/CA); [1985] AC 58 (HL).
Carron Iron Co v Maclaren (1855) 5 HL Cas 416.
Castanho v Brown & Root (UK) LtdELR [1981] AC 557.
Channel Tunnel Group Ltd v Balfour Beatty Construction LtdELR [1993] AC 334.
Cohen v RothfieldELR [1919] 1 KB 410.
Donohue v Armco Inc [1999] CLC 1748 (QB); [2001] UKHL 64; [2002] CLC 440 (HL).
ED & F Man (Sugar) Ltd v Haryanto (No. 2)UNK [1991] 1 Ll Rep 429.
Ellerman Lines Ltd v ReadELR [1928] 2 KB 144.
Glencore International AG v Exter Shipping LtdUNK [2002] EWCA Civ 528; [2002] CLC 1090.
Hispanica de Petroles SA v Vencedora Oceanica Navegacion SA (The Kapetan Markos NL)UNK [1986] 1 Ll Rep 211.
Hyman v HelmELR (1883) 24 Ch D 531.
Laker Airways Ltd v Sabena, Belgian World Airlines (1984) 731 F 2d 909.
McHenry v LewisELR (1883) LR 22 Ch D 397.
Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Refinery ADUNK [2002] EWHC 2210 (Comm); [2003] 1 Ll Rep 1.
Masri v Consolidated Contractors International Co SALUNK [2005] EWCA Civ 1436; [2005] 2 CLC 704.
Masri v Consolidated Contractors International Co SALUNK [2008] EWCA Civ 303; [2008] 1 CLC 657.
Mercedes-Benz AG v Leiduck [1995] CLC 1090; [1996] AC 284.
Midland Bank plc v Laker Airways LtdELR [1986] QB 689.
Mietz v Intership Yachting Sneek BVECAS (Case C-99/96) [1999] ECR I-2277.
News International v BorgognonUNK (unreported, 5 March 1988).
OT Africa Line Ltd v Magic Sportswear CorpUNK [2005] EWCA Civ 710; [2005] 1 CLC 923.
Parker v Schuller (1901) 17 TLR 299.
Phillip Alexander Securities and Futures Ltd v Bamberger [1996] CLC 1757.
Reichert v Dresdner Bank AGECAS (Case C-261/90) [1992] ECR I-2149.
Royal Exchange Assurance v Compania Naviera Santi SA (The Tropaioforos (No 2))UNK [1962] 1 Ll Rep 410.
Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (The Jay Bola) [1997] CLC 993.
Seismic Shipping Inc v Total E&P UK plc (The Western Regent)UNK [2005] EWCA Civ 985; [2005] 2 CLC 182.
Settlement Corp v HochschildELR [1966] Ch 10.
Siskina, TheELR [1979] AC 210.
Société Commerciale de Reassurance v Eras International LtdUNK [1992] 1 Ll Rep 570.
Societe Commerciale de Reassurance v Eras International Ltd (No. 2)UNK [1995] 1 Ll Rep 64.
Société Nationale Industrielle Aérospatiale v Lee Kui JakELR [1987] AC 871.
South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NVELR [1987] AC 24.
Turner v GrovitUNK [2001] UKHL 65; [2002] CLC 463.
Turner v GrovitECAS (Case C-159/02) [2004] 1 CLC 864; [2004] ECR I-3565.
Van Uden Maritime BV (t/a Van Uden Africa Line) v Kommanditgesellschaft in Firma Deco-LineECAS (Case C-391/95) [1998] ECR I-7091.
Youell v Kara Mara Shipping Co Ltd [2000] CLC 1058.
Anti-suit injunction — Foreign judgment debtors — English court decided that claimant entitled under 1992 agreement to share in oil concession in Yemen belonging to Lebanese companies one with domicile in Greece — After judgment companies began proceedings in Yemen for declarations of non-liability — Judgment debtors enjoined from pursuing proceedings relating to 1992 agreement in any courts other than English or EU courts — Anti-suit injunction not separate claim requiring own basis of jurisdiction — Right to apply for injunction not itself cause of action but ancillary and incidental to existing proceedings — Judgment debtors' submission to English jurisdiction sufficient basis for imposition of anti-suit injunction — Not necessary for injunction to be protective or provisional measure, but anti-suit injunction such a measure — Discretion properly exercised consistently with dictates of comity — Consistent with principle for English court to restrain re-litigation abroad of claim already subject of English judgment — Council Regulation 44/2001, art. 2, 31 — Civil Procedure Rules 1998, r. 6.20.
This was an appeal raising the question whether the English court had jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors, one of whom had a domicile in a Brussels I Regulation state, restraining them from pursuing proceedings abroad seeking to re-litigate matters which had been decided by the English court.
The claimant (M) had succeeded in an action in the Commercial Court in proving that he had a 10% interest in the judgment debtors' own 10% interest in an oil concession for the exploitation of an oil field in the Yemen. He obtained judgment in the sum of about US$55m against the appellant companies, CCIC and CCOG, but they had not paid any part of the judgment debt, and had made it clear that they would resist payment. CCOG and CCIC were Lebanese companies but CCIC also had a domicile in Greece. After jurisdictional challenges, CCOG and CCIC had submitted to the jurisdiction of the English court by appearing and defending the case on the merits.
After judgment had been given against them in England CCOG and CCIC brought an action in the Yemen for a declaration that they were not liable to M. M applied for an anti-suit injunction and the judge ordered the judgment debtors not to commence or continue proceedings against M relating to the 1992 agreement under which M had acquired his rights, or the parties' rights and obligations thereunder, in any courts other than the English courts or EU courts, including in particular the proceedings in the Yemen (see [2007] EWHC 1510 (Comm)). The Yemeni proceedings were discontinued following the grant of the injunction.
The judgment debtors appealed arguing that from the point of view of international jurisdiction (both under the Brussels I Regulation and under CPR 6.20) the anti-suit injunction should be regarded as a separate substantive claim over which jurisdiction had to be separately established; by virtue of art. 2 of the Brussels I Regulation CCIC had to be sued in Greece; CCOG's submission to the jurisdiction of the court for the purposes of the trial of the breach of contract action did not give jurisdiction for the purposes of the anti-suit injunction; the order was not a provisional or protective measure so as to give jurisdiction over CCIC in the absence of the English court's jurisdiction over the substance of the case; the conditions for the grant of an anti-suit injunction were not made out; the judge wrongly exercised his discretion to grant an injunction; there was no basis for extending it to any country outside Yemen and it should in any event have excluded the non-EU contracting states to the Lugano Convention.
Held, dismissing the appeal:
1. The English court had power over persons properly subject to its in personam jurisdiction to make ancillary orders in protection of its jurisdiction and its processes, including the integrity of its judgments. That power was a discretionary one, to be exercised in accordance with the requirements of international comity. The type of anti-suit injunction granted in these proceedings was not one which was founded in English law on a cause of action separate from the claims in the main proceedings which gave rise to the judgment debt. The claim for an anti-suit injunction did not involve CCIC being “sued” for the purposes of the Brussels I Regulation, nor did it involve “a claim” for the purposes of the heads of jurisdiction in CPR 6.20. The judgment debtors' submission to the jurisdiction gave the English court power to make any incidental orders in the litigation, irrespective of whether (in the case of CCIC) the order was a provisional or protective measure.
2. The claim for an anti-suit injunction was not a new claim which had to satisfy its own jurisdictional criteria. Where the party was before the court an anti-suit injunction was not a separate claim requiring its own basis of jurisdiction. Where the cases spoke of a right not to be sued, they were not indicating that there had to be a separate cause of action, legal or equitable, but were simply using the word “right” in the sense of the thing which gave rise to a remedy. CPR, r. 6.20 applied to applications and application notices as it applied to claims and claim forms: CPR, r. 6.18. But that did not mean that a separate head of jurisdiction had to be identified for every application notice in existing proceedings. As a matter of English law, once the court had jurisdiction over the substance of the case, it had jurisdiction to make ancillary orders, including anti-suit injunctions to protect the integrity of its process.
3. Once the English court was seised of the substance of a dispute it had the power to grant ancillary orders in that dispute, both prior to judgment and after judgment, and irrespective of whether the defendant or judgment debtor was domiciled in a Brussels I Regulation state. Such ancillary orders were not limited to “protective or provisional measures” within the meaning of art. 31 of the Brussels I Regulation. Even where the defendant was domiciled in a Brussels I Regulation state, whether the English court, as the court with jurisdiction over the substance of the case, had power to grant an ancillary order did not depend upon whether the injunction was a provisional or purely interim measure for the purposes of art. 31....
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