G v R
[2023] EWHC 2365 (Comm)
SY RORO 1 PTE Limited & Anor v Onorato Armatori SRL & Ors
17 May 2024
[2024] EWHC 1283 (Comm)
High Court
Two companies successfully sued other companies to stop them from taking their legal fight to another country. They almost completely won, but the judge wouldn't let them stop the other companies from challenging a boat seizure in France because that's up to the French court to decide.
Key Facts
- •SY RORO 1 PTE LIMITED and SY RORO 2 PTE LIMITED (Claimants) brought an application for injunctive relief against ONORATO ARMATORI SRL, F.LLI ONORATO ARMATORI SRL, MOBY SPA, and COMPAGNIA ITALIANA DI NAVIGAZIONE SPA (Defendants).
- •The Claimants are owners of ro-ro ferries bareboat chartered to the Defendants through a series of sub-charters.
- •An arbitral tribunal terminated the head bareboat charter, ordering redelivery of the vessels.
- •The Claimants exercised rights under multiparty agreements (MPAs) to terminate sub-charters.
- •A trial before Sir William Blair upheld the Claimants' claims, finding sub-charters terminated.
- •The Claimants sought anti-suit injunctions to prevent Defendants from commencing proceedings outside of the agreed English jurisdiction.
- •The MGO, one of the vessels, was arrested in France, and the Defendants challenged this arrest.
- •Press articles indicated the Defendants' intent to launch legal action against the Claimants in Italy and abroad.
- •The Claimants sought anti-suit injunctions based on arbitration clauses in bareboat charters and English jurisdiction clauses in MPAs.
Legal Principles
Anti-suit injunctions are granted under s.37(1) of the Senior Courts Act 1981, based on the principles established in AES Ust-Kamenogorsk.
AES Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35
A choice of English jurisdiction clause, even without explicitly stating exclusivity, is presumed to be exclusive, especially when coupled with an English choice of law clause.
Global Maritime Investments Cyprus Limited v OW Supply & Trading AS (under Konkurs) [2015] EWHC 2690 (Comm); Generali Italia SpA & Ors v Pelagic Fisheries Corporation & Anor (Rev 1) [2020] 1 WLR 4211; AIG Europe SA and others v John Wood Group PLC & Anor [2022] EWCA Civ 781
Courts will interpret multiple agreements within a single transaction to allow them to coexist, even with differing forum selection clauses.
Perella Weinberg Partners v Codere [2016] EWHC 1182 (Comm)
An injunction may be granted to prevent illegitimate interference with English court processes, even if England isn't the natural forum for the underlying litigation.
Raphael KC, The Anti-Suit Injunction (2nd ed), paras. 4.66-4.70; Masri v Consolidated Contractors (No. 3) [2009] QB 503; Mamidoil-Jetoil Greek Petroleum Company SA & Anor v Okta Crude Oil Refinery AD [2003] 1 Lloyd’s Rep. 1; ED & F Man (Sugar) Ltd v Yani Haryanto (No. 2) [1991] 1 Lloyd’s Rep.161 and 429
It is presumptively legitimate to resist enforcement of English judgments abroad under the foreign legal system's rules.
Masri v Consolidated Contractors (No. 3) [2009] QB 503 at [93]
The court can prospectively permit alternative service of an injunction order and dispense with the requirement of personal service, particularly in urgent situations.
Business Mortgage Finance 4 PLC & Ors v Hussain [2022] EWCA Civ 1264; M v N [2021] EWHC 360 (Comm)
Outcomes
The Claimants' claim form was amended to include relief related to the head bareboat charter, allowing an anti-suit injunction application.
Pragmatic approach to a technical argument.
The court found the English jurisdiction clause in the MPAs to be exclusive.
The clause's wording, combined with the English choice of law clause and service provisions, strongly indicated exclusivity.
Anti-suit injunctions were granted against the Defendants.
A real risk of proceedings being commenced outside the agreed jurisdiction existed, and the Defendants failed to provide assurances to the contrary.
The Claimants' request to restrain the Defendants from challenging the French arrest of the MGO was refused.
This would improperly interfere with the French court's jurisdiction and potentially prevent legitimate challenges to the arrest.
Alternative service of the anti-suit injunction was permitted.
The urgency of the situation and difficulties in effecting personal service justified alternative service by email.
The Claimants were awarded 80% of their costs on an indemnity basis.
The Claimants largely succeeded on their application, despite some aspects being unsuccessful, and the Defendants' resistance lacked merit.