In Fujifilm Kyowa Kirin Biologics v Abbvie Biotechnology Ltd, Arnold J considered the court’s jurisdiction to grant a domestic anti-suit injunction in circumstances where there is no contractual bar to a claim, such as an arbitration clause or an exclusive jurisdiction clause in favour of the courts of another jurisdiction; in other words, quite unusual circumstances.
Arnold J noted that the court’s power to grant injunctions under section 37 Senior Courts Act 1981 was, on the face of things, unfettered, but he accepted that the jurisdiction had to be exercised on a principled basis. Both parties appeared to have agreed that the power could only be exercised if there was unconscionable conduct, which included oppressive or vexatious conduct (see, for example, Glencore International AG v Exeter Shipping Ltd (Rix LJ at paragraph 42)). They also appear to have agreed that this was a high threshold to cross. They disagreed about two further considerations, namely:
- Whether the power would only be exercised where there were existing proceedings in which the relevant issue could be determined (Arnold J held that there need not be).
- Whether a domestic anti-suit injunction had to be qualified so as only to prevent the bringing of proceedings without first obtaining the permission of the court, since otherwise such an injunction would be contrary to the defendant’s right of access to the court under Article 6 of the European Convention on Human Rights (a qualification which did commend itself to the judge).
Examples were given of the type of case in which such injunctions might be granted, ranging from Landi den Hartog BV v Sea Bird (Clean Air Fuel Systems), which was a case in which the respondent appeared to be harassing the applicant, via, Jacey (Printers) v Norton & Wright Group, to Essex Electric (Pte) Ltd v IPC Computers (UK) Ltd where Warner J held that if threatened proceedings would be an abuse of process, then the court had jurisdiction to restrain the bringing of such proceedings. Reference was also made to the court’s jurisdiction to grant civil restraint orders against vexatious litigants. This has two bases. There is a statutory basis in section 42 of the Senior Courts Act 1981, but, in addition, the court can exercise its inherent jurisdiction to control its own procedure. The latter basis is now regulated by Practice Direction (PD) 3C, which effectively codifies the judgment of the Court of Appeal in Bhamjee v Forsdick.
The judge also referred to the more common case of an injunction to restrain the presentation of a winding up petition against a company. Injunctions to restrain presentation of winding up petitions are commonly granted upon a final basis, and without any qualification permitting presentation with the permission of the court. The jurisprudential basis for the grant of such an injunction is that it would be an abuse of the process of the court for the defendant to present a winding up petition because it is not a creditor of the company and therefore does not having standing to do so.
Finally, Arnold J said:
“The conclusion I draw from this review of the law is that the court has power to grant a domestic anti-suit injunction against a defendant in respect of whom it has in personam jurisdiction on the ground that the proceedings which the defendant threatens to bring are vexatious or oppressive or an abuse of process. This power must be exercised with considerable caution. In particular, it will rarely be justified to grant an injunction which restrains the commencement of proceedings other than the presentation of a winding up petition without the qualification that the restraint only applies if the defendant does not obtain the permission of the court first. But I do not accept that the power should only be exercised in circumstances where there are existing proceedings in which the relevant issue can be determined (even if only as against different parties to those against whom the proceedings are threatened).”
Stichting Shell Pensioenfonds v Krys, in which the Privy Council took a different and laxer approach, appears not to have been cited. In that case it was held that, on an application for an injunction to restrain foreign proceedings, it was not necessary to show that the respondent creditor had acted vexatiously or oppressively by invoking the jurisdiction of a foreign court, rather that, “as with any injunction”, the court had a discretion to refuse relief if in the particular circumstances “it would not serve the ends of justice”. I believe that statement to be too wide, and the approach of Arnold J to be preferable, irrespective of whether the injunction sought is to restrain domestic or foreign proceedings.
