AIKENS J: The actions
1. There are before the Court applications in two actions. In the first
action, Folio 572 of 1999, the claimants are OT A. Line Ltd, an English
company of shipowners. I shall call them "the shipowners". The first
defendant is a business man engaged in international trade including
the import and export of goods to and from West Africa. The second
defendant is a company that is owned or controlled by the first defendant
or alternatively a business name of the first defendant. In this action
(which I will call "Folio 572"), there has been no response by the
defendants to the service of proceedings on them in Monrovia, Liberia.
(Permission to serve the proceedings on the defendants in Liberia was
granted without a hearing by Mr Justice Longmore on May 15, 2000.) The
defendants have not acknowledged service and they were not represented
in the hearing before me on Oct 17 and 18. I will call these defendants
"the Liberian defendants".
2. Folio 572 concerns the alleged short delivery of a consignment of goods
shipped in the vessel "K." from Antwerp to Monrovia Liberia on or about
May 24, 1998 in container No OTAU 410277 under bill of lading number
044 dated May 24, 1998 at Antwerp. That bill of lading contained terms
and conditions including cl 25, which provides as follows:
Any claim or dispute whatsoever arising in connection with the Carriage
under this Bill of Lading shall exclusively be governed by English law and
determined by the High Court in London.
3. The Liberian defendants have brought proceedings in the Antwerp
Court in respect of the alleged short delivery. The shipowners say that
the allegation of short delivery is based on fraudulent documents. The
shipowners also say that, pursuant to the exclusive jurisdiction clause in
cl 25 of the bill of lading terms, any action should have been brought in
the English Court. In Folio 572 the shipowners claim a declaration that
there was no shortage; damages for deceit and conspiracy (because of
the fraudulent claim) and anti-suit and anti-arrest injunctions.
4. The second action is Folio 573 of 2000: "Folio 573". In this case the
shipowners are also the claimants. The defendants fall into three groups.
(1) The first group consists of the first two defendants, who are Mr H. and
another of his Liberian companies or a trade name. I will also call them
the Liberian defendants. They have not responded to the service of these
proceedings on them in Liberia and were not represented at the hearing
before me. (Permission to serve the claim form and other documents
including the application notice with which I am now concerned on all the
defendants in this action was granted by Mr Justice Thomas on May 12,
2000.)
(2) The second group consists of two Belgian companies -- the third and
fourth defendants: NV O. Trading Co and BV M.. They were the receivers
and the receivers' agent in Antwerp of a consignment of coffee (in 10
containers) that was shipped under bill of lading numbered MLW/ANT.001
and dated Monrovia June 4, 1998. That bill of lading also contained a cl
25 in the terms I have set out above. It is alleged by the receivers that
there was a short delivery of the coffee at Antwerp. That is denied by the
shipowners.
(3) The third group consists of the remaining defendants -- the fifth to
42nd defendants. They are all insurers of the coffee. The insurers are
domiciled in Belgium. France, Italy, the Netherlands, Switzerland, Ireland
and England. In other words, all the defendants, apart from the first two,
are domiciled in countries that are party to either the Brussels or Lugano
Conventions. That fact has given rise to the bulk of the arguments in this
case. The third to 42nd defendants (who I will call the "receiver parties")
have all brought proceedings in the Antwerp Court against the shipowners
for damages for the alleged short delivery of the coffee under bill of lading
MLW/ANT.001. The receiver parties were all represented by solicitors and
Counsel in the hearing before me.
5. In Folio 573 the shipowners also allege that the apparent shortage of
cargo on delivery at Antwerp was in fact due to the fraud of the Liberian
defendants in not shipping the allegedly missing coffee in the first place.
The shipowners claim a declaration that there was no shortage for which
they were responsible. They also seek damages for deceit and conspiracy.
The shipowners also seek anti-suit and anti-arrest injunctions against
all the defendants. As against the receiver parties these injunctions
are sought because those parties have actually started proceedings in
Antwerp. The shipowners also claim damages for breach of the exclusive
jurisdiction clause in cl 25 of the bill of lading.
The applications
6. The Court has to deal with the following applications:
(1) In Folio 572:
(a) By their application notice of May 22, 2000 the claimants apply for five
orders. They are:
1. An injunction restraining the Defendants from continuing the
proceedings commenced by them in Belgium against the Claimants in
respect of an alleged cargo shortage claim, particulars of which are set
out in the Particulars of Claim herein.
2. An injunction restraining the Defendants from pursuing the said alleged
cargo shortage claim against the Claimants other than before the High
Court of Justice in London.
3. An injunction restraining the Defendants from arresting or otherwise
detaining in respect of the alleged cargo shortage claim, any ship or any
other property owned, managed by or chartered to the Claimants, or such
others.
4. Insofar as necessary, an Order that the Claimants have permission
to apply to the Court of Belgium and to such other foreign Courts as
necessary, to enforce the orders in (1) (2) and (3) above.
5. Permission, if necessary, to serve the Order of the Court on the
Defendants outside the jurisdiction in Liberia.
(b) These applications are not opposed. But some of the arguments that
have been raised by Mr McParland on behalf of the receiver parties in Folio
573 are relevant to the decision on whether to grant the orders sought
in Folio 572. Therefore I shall consider whether the orders in that case
should be granted at the end of this judgment.
(2) In Folio 573:
(a) By their application notice of May 11, 2000, the claimants apply
for the same five orders as they seek in Folio 572, but with slight
modifications to take account of the fact that only the receiver parties
have begun proceedings in Belgium in relation to this consignment. The
orders sought are:
1. An injunction restraining the 3rd to 42nd Defendants from continuing
the proceedings commenced by them in Belgium against the Claimants
in respect of the alleged cargo shortage claim, (as particularised in the
Particulars of Claim).
2. An injunction restraining all the defendants from pursuing the alleged
cargo shortage claim against the Claimants other than before the High
Court of Justice in London.
3. An injunction restraining the defendants from arresting or otherwise
detaining in respect of the cargo shortage claim, any ship or any other
property owned, managed by or chartered to the Claimants, or such
others.
4. Insofar as necessary, an Order that the Claimants have permission
to apply to the court of Belgium, and to such other foreign courts as
necessary, to enforce the Orders in (1), (2) and (3) above.
5. Permission, if necessary, to serve the order of the court on the
defendants outside the jurisdiction in Liberia, France, Italy, Switzerland,
Germany, Ireland and the Netherlands.
(b) the ground for those orders is stated to be that:
The Claimants and the Defendants agreed in writing that the matters in
dispute should be litigated before the High Court and this is a proper case
for service out of the jurisdiction under rule 6.20 of the Civil Procedure
Rules.
(c) The receiver parties originally made an application dated Aug 18, 2000
in which they sought orders that:
... there be a stay of all proceedings in the action herein against them
pending the resolution by the Commercial Court of Antwerp, Belgium
of the question of such Court's jurisdiction in General List Action No 99/
A/12538.
At my suggestion during the hearing this was amended, because the
reality of the position is that the receiver parties were challenging the
jurisdiction of the English Court altogether (under the CPR Part 11) and
also the right to serve the proceedings out of the jurisdiction. So in its
revised form the application notice of the receiver parties sought both a
stay of the English proceedings and the further order that:
The permission granted by order of Mr Justice Thomas on 12 May 2000
providing for service out of the jurisdiction on the 3rd to 42nd defendants
of:
(i) the Claim form herein and the Particulars of Claim attached thereto:
and/or
(ii) the Order of 12 May 2000; and
(iii) the Claimant's application notice of 11 May 2000
be set aside and/or that the order of Mr Justice Thomas of 12 May be
discharged.
(d) The ground for that order stated that:
... the Antwerp action involves the same cause of action between
the same parties and Articles 21 and 22 of the Brussels Convention
provide that the Court herein shall or may stay its proceedings until the
jurisdiction of the Court in Antwerp (which was first seised) is established.
[Further] that in the circumstances this was not a proper case for
permission to serve the Claim form and Particulars of Claim and the
Application Notice of 11 May 2000 out of the jurisdiction of this court.
The facts: Folio 572
7. A consignment of sweets and biscuits was shipped in a container, No
OTAU 410277 on board the vessel K. at Antwerp on May 24, 1998 for
carriage to and delivery at Monrovia under bill of lading No 004. In the bill
of lading the second defendant is named as the consignee. The container
was sealed with seal No 55741. As I have already mentioned, cl 25 of
the bill of lading provided for exclusive English law and jurisdiction in the
terms I have set out. Without wishing to prejudge the argument on the
nature of the clause I will refer to it as a "Jurisdiction clause" or "JC".
8. Upon the arrival of the ship at Monrovia the container was discharged
on June 4, 1998 and the Liberian defendants presented the bill of lading
as the lawful holders and took delivery of the goods. So, the claimants
say, the Liberian defendants are bound by the terms of the contract of
carriage evidenced by the bill of lading by virtue of ss 2 and 3 of the
Carriage of Goods by Sea Act, 1992. Accordingly the Liberian defendants
are bound by the terms of cl 25 and must bring any claim that they have
in the English Courts.
9. The claimant shipowners allege that the Liberian defendants, either on
their own or in conspiracy with others, produced fraudulent documents
which falsely stated that there were huge shortages of cartons of
goods when the container was unstuffed at Monrovia. But the Liberian
defendants have asserted that these shortages were the fault of the
shipowners as carriers of the container. In the particulars of claim that
the shipowners have served in the English proceedings they have set
out full details of why they say that the Liberian defendants' shortage
claim is fraudulent. In the witness statement made by Mr Ghirardani
of Stephenson Harwood (solicitor for the shipowners in Folio 572) he
sets out details of what he describes as the "fraudulent claims industry"
in West Africa and he says that this claim is just another example of
the genre. He says that there is ample and convincing evidence to
demonstrate that the claim is fraudulent. I need not go into the details
now.
10. On May 31, 1999 Fayad H. Co began proceedings in the Court of
Commerce in Antwerp, putting forward the shortage claim. The summons
was served on the shipowners on June 2, 1999. The parties were ordered
to appear before the Antwerp Court on Sept 7, 1999. That Court hearing
was adjourned without another date being fixed. The shipowners' Belgian
lawyer has since received a bundle of "evidence" from the Liberian
defendants' lawyer but otherwise no steps have been taken in those
proceedings. The shipowners' Belgian lawyer has, on several occasions,
asked the lawyers for the Liberian defendants to withdraw the Belgian
proceedings but they have not responded to these requests.
11. Since the shipowners began the proceedings in the English
Commercial Court the shipowners' Belgian lawyers have received two
letters from the lawyers acting for the Liberian defendants asking when
defence submissions would be filed on behalf of the shipowners in the
Belgian proceedings. The next step in the Belgian proceedings would
be for the Liberian defendants to apply for a date by which the defence
submissions should be served. But no such application has yet been
made.
12. The English proceedings were started by the shipowners on May 10 or
11, 2000, that is some nine months after the Belgian proceedings. In the
claim form the shipowners claim: (1) a declaration that the defendants
have made a false and fraudulent claim; (2) damages for deceit and
conspiracy; (3) an anti-suit injunction and an anti-arrest injunction
against the defendants; (4) damages for breach of cl 25 in the bill of
lading -- which is described as the "exclusive jurisdiction clause"; (5)
interest and costs.
13. Particulars of claim were attached to the claim form. They set out
details of the facts relied on in support of the allegations that the shortage
claim is false and fraudulent and also the facts relied on in support of the
anti-suit injunction.
The facts: Folio 573
14. The consignment of coffee that has given rise to this action and its
mirror image in Belgium was shipped in 10 containers and put on board
K. at Monrovia in June, 1998. The containers were stuffed by persons
under the direction of the Liberian defendants. All 10 containers were
to be carried to Antwerp for delivery there. The bill of lading was No
MLW/ANT001 dated June 4, 1998. The second defendant, Liberia General
Business Services, was identified in the bill of lading as the shipper. O.
Trading Co of Antwerp was identified as the consignee. The bill of lading
contained the same terms as those in the bill of lading with which Folio
572 is concerned, including cl 25.
15. After the vessel arrived at Antwerp the containers were discharged.
It is accepted for present purposes that the third or fourth defendants
presented the bill of lading as the lawful holder and took delivery of the
coffee in the containers. It is thus accepted for present purposes that, as
a matter of English law, the third and fourth defendants became bound
by the terms of the bill of lading by virtue of ss 2 and 3 of the 1992 Act.
Those terms would include cl 25.
16. However the receiver parties have pleaded, in their defence in
the English proceedings (which was served without prejudice to their
application to stay those proceedings) that, as a matter of Belgian law, cl
25 of the bill of lading did not bind the third and fourth defendants (ie the
receivers of the coffee in Antwerp). Further it is pleaded that, as a matter
of Belgian law, this would mean that the fifth to 42nd defendants were
also not bound by it.
17. When the containers were discharged the original seals were intact.
Nevertheless upon unstuffing apparently there were very large shortages
of coffee in five containers, totalling about half the whole shipment. It is
the shipowners' case that the allegedly missing bags of coffee were never
stuffed inside the containers. The shipowners say that the first and/or
second defendants -- either on their own or with others who cannot be
identified -- fraudulently created or procured by corruption the creation of
misleading documents. Those were designed to give the impression that
the allegedly missing coffee bags had been stuffed into the containers
prior to shipment.
18. The receiver parties have alleged that there were shortages of coffee
and that this was the fault of the shipowners as carriers of the containers.
In the English action the shipowners claim a declaration that the alleged
shortage claim which the receiver parties have made is unfounded and
that the shipowners are not responsible for the alleged shortage.
19. On June 30, 1999 proceedings were started by the receiver parties
in the Court of Commerce in Antwerp. The proceedings were against
the shipowners and alleged that there had been short delivery from the
vessel. The Belgian proceedings were served on the shipowners on July 2,
1999.
20. On Oct 26, 1999 the shipowners' Belgian lawyer, Mr Clive van Aerde,
wrote to Mr De Paep, the Belgian lawyer representing the receiver parties.
Mr van Aerde took the point that the relevant bill of lading contained cl
25 which he said conferred exclusive jurisdiction on the English Court.
He also asked the receiver parties to withdraw the Belgian proceedings in
favour of English proceedings. Mr De Paep replied on Nov 12, 1999 and
declined the invitation to withdraw the Belgian proceedings.
21. Under Belgian law any point on jurisdiction must be taken before any
other defence submissions. Therefore on May 10, 2000 the shipowners'
Belgian lawyers filed their pleading which challenged the jurisdiction of
the Antwerp Court. The pleading stated:
According to the conditions of the bill of lading, only the High Court of
Justice in London (England) is competent.
It then quoted from cl 25 of the bill of lading and continued:
As a result, the Chamber of Commerce has no legal competence or at
least no jurisdiction to pronounce judgment on the claim of the Plaintiff.
22. On the same day the shipowners issued the claim form in Folio 573.
Leave to serve the claim form out of the jurisdiction on the receiver
parties (and the Liberian defendants) was granted on May 12, 2000.
(Permission was needed in relation to the receiver parties because the
requirement under CPR Part 19(1)(a) that there were no other extant
proceedings in a Brussels or Lugano Convention country was not fulfilled.)
The English proceedings were served in Belgium on July 5, 2000.
23. On July 12, 2000 the receiver parties filed their submissions in the
Belgian proceedings. Two principal points were made. The first point was
that as the goods were unloaded in Antwerp the Belgian Courts had the
power to examine the present claim in compliance with art 635.3 of the
Belgian Judicial Code and art 5(1) of the Brussels Convention. Secondly
they alleged that cl 25 of the bill of lading did not bind the receiver parties
because, as a matter of Belgian law, the receivers, as "third holders"
of the bill of lading, were not the legal successors of the "loader", but
they held "an autonomous right with regard to the shipowner/sea-
carriers". The pleading concluded that the Belgian Court was therefore
competent to examine the claim and that Belgian law was applicable.
(These propositions of Belgian law were verified in a witness statement
of Mr Luc Wijffels of R & I Wijffels of Antwerp, who acts for the receiver
parties in the Antwerp proceedings.) There was no suggestion in this
pleading that the shipowners had delayed in taking the jurisdiction point
or that they were precluded from doing so.
24. On Sept 11, 1999 the shipowners' Belgian lawyers filed further
submissions on the jurisdiction issue. I was informed that the Antwerp
Court would probably hear the point in January, 2001.
25. Mr Dunning for the shipowners was prepared to accept, while
reserving the position for argument in a higher Court, that the
proceedings in the Antwerp Court and those in this Court involved the
"same cause of action" for the purposes of art 21 of the Brussels and
Lugano Conventions.
The arguments of the parties: Folio 573
26. I will concentrate on the arguments in this action, where the
claimants and the third to 42nd defendants were represented. I am
extremely grateful to both Mr Dunning and Mr McParland for their very
helpful written and oral submissions. …
The issues for determination
29. I think that it is best to consider the issues raised in the following
order:
The first question must be whether I am bound to follow the Continental
Bank case or whether it can be distinguished for any of the reasons put
forward by Mr McParland? Mr Dunning accepts (at least in this Court)
that if the approach in the Continental Bank case cannot be applied in
this case then there must be a stay of the English proceedings under
art 21 of the Brussels/ Lugano Convention. And Mr McParland accepts
that if I am bound to follow the Continental Bank case then this Court
must consider first whether cl 25 fulfils the requirements of art 17 of the
Conventions. Secondly, he accepts that if art 17 is fulfilled, then I must
consider whether, as a matter of discretion, I should grant an anti-suit
injunction in this case. Under this topic I shall therefore consider the
points (2), (3), (4), (9) and (10) of Mr McParland's argument that I have
outlined above.
(2) If I am bound by the Continental Bank case then the next question
is: does cl 25 of the bill of lading (as between the shipowner and the
shippers) fulfil the requirements of art 17 of the Conventions? If it does
then are the receiver parties bound by it for the purposes of art 17?
(3) If the answer to both parts of (2) is "yes", then the last question must
be whether, as a matter of discretion I should grant an anti-suit injunction
against both the shippers and the receiver parties.
Question one: Is the Court bound to apply the Continental Bank case?
30. The decision in the Continental Bank case. The claimant was an
American bank with a branch in Greece. At the time of the proceedings
Greece was a party to the Brussels Convention. The bank had lent money
to 15 one-ship companies which were registered in Panama and Liberia.
They were managed by a Greek company based in Athens. The loans
were guaranteed by three individuals who were Greek citizens. The loan
agreements contained a provision (cl 21) providing for English proper law
and that the borrowers irrevocably submitted to the jurisdiction of the
English Courts. Repayments of the loans fell into arrears. Three sets of
proceedings were begun. The first (started by the borrower companies
and the three guarantors) was begun in the Athens Court on Nov 20,
1990. The borrowers claimed damages against the bank totalling US
$63 m, pleading art 919 of the Greek Civil Code. Those proceedings
were served on the bank in the USA in March, 1991. The second set of
proceedings was begun by the bank in the Commercial Court in England
on Apr 7, 1991. Those proceedings sought an injunction to restrain the
borrowers and guarantors from continuing the action in Greece, relying
on the exclusive jurisdiction clause. The third set of proceedings was
begun by the bank in the Commercial Court on Oct 4, 1991 to recover the
arrears on the loan.
31. In the first of the English proceedings the bank sought a permanent
injunction to restrain the Greek proceedings on the ground that those
proceedings were in breach of cl 21 of the loan agreement. It was
common ground that the clause fulfilled the requirements of art 17
of the Brussels Convention. The borrowers and guarantors countered
by applying to strike out the bank's claim for an anti-suit injunction;
alternatively they sought a stay, relying on arts 21 and 22 of the Brussels
Convention. Mr Justice Gatehouse rejected those applications and granted
the bank final injunctions to restrain the Greek proceedings.
32. The judgment of the Court of Appeal was given by Lord Justice Steyn.
The Court held first, that the law and jurisdiction clause in the loan
agreements covered the Greek proceedings. Secondly they held that
the clause was an exclusive jurisdiction clause as a matter of English
law. It followed that the borrowers (and the guarantors whose position
was regarded as the same) were in breach of the clause by bringing the
Greek proceedings. Then the Court of Appeal analysed the impact of the
Brussels Convention. They considered the argument of the borrowers and
guarantors that arts 21 and 22 of the Convention required the English
Court to grant a stay of the English action and to refuse an anti-suit
injunction. It was common ground that the exclusive jurisdiction clause
fulfilled the requirements of art 17 of the Convention.
33. The Court noted (at p 510, col 2; p 596C-F) that the Brussels
Convention provided a --
... radical new regime governing the International legal relationships of
the Contracting States.
It also noted that the Convention had its genesis in the civil law tradition
rather than that of the common law. The Court also pointed out the
contrasts between the approaches of the two systems:
Traditionally the English Courts assert a discretion to enjoin a party
by injunction from pursuing foreign legal proceedings in breach of an
exclusive jurisdiction clause. The idea that a national Court has discretion
in the exercise of its jurisdiction does not generally exist in civilian
systems.
This difference in the two systems and their approaches to conflicts on
jurisdictional matters was subsequently emphasized in the speech of Lord
Goff of Chieveley in Airbus Industrie GIE v Patel, [1998] 1 Lloyd's Rep 631
at p 636; [1999] 1 AC 119 at p 132. The Continental Bank case was cited
in argument, but not referred to in their Lordships' speeches.
34. The next paragraph in the Continental Bank judgment is the critical
one. Lord Justice Steyn stated:
Article 17 follows the civilian approach. Article 17 has mandatory effect.
When art 17 applies it follows that the jurisdiction agreement prorogates
(confers) jurisdiction on the Courts of the Contracting State chosen by the
parties and that the jurisdiction agreement deprives the Courts of other
Contracting States of jurisdiction. Indeed, it is the duty of the Courts of
other Contracting States of their own motion to consider whether art 17
applies and to decline jurisdiction if it does: Schlosser Report (Official
Journal 1979 No C 59 p 81 par 22). There is no discretionary power in
the Convention itself (Lord Justice Steyn's emphasis) to override the
conclusive effect of an exclusive jurisdiction agreement which conforms
with the requirements of art 17. It follows that if art 17 applies its
provisions take precedence over the provisions of arts 21 and 22. …
Article 21 provides that there shall be a mandatory stay of proceedings in
favour of the Court first seised, if Courts of different Contracting States
are seised of proceedings involving "the same cause of action". If Miss
Dohmann's submission is correct, it follows that a party will be able to
override an exclusive jurisdiction agreement which is governed by art
17 by preemptively suing in the Courts of another Contracting State.
The Courts of the latter state which ex hypothesi have been deprived of
jurisdiction would then be the Court "first seised". The chosen Court of the
parties would then be obliged to decline jurisdiction or, if the jurisdiction
of the other Court is contested, to stay its proceedings. In this way the
party who is in breach of the contract will be able to set at naught an
exclusive jurisdiction agreement which is the product of the free will of
the parties. The principle of the autonomy of the parties, enshrined in art
17, cannot countenance such a solution.
38. In the next paragraph of the judgment, after Lord Justice Steyn had
referred to several first instance decisions which had come to the same
conclusion, he concluded:
The critical point is that there is nothing in the Convention which is
inconsistent with a power vesting in the English Court to grant an
injunction the objective of which is to secure enforcement of an exclusive
jurisdiction agreement.
For all these reasons we conclude that since art 17 applies, the question
of a stay under arts 21 and 22 of the Convention does not arise.
39. Overall the Court of Appeal decided that, in a case which comes
before the English Court, as the Court "second seised" within arts 21 and
22 of the Convention, and where one side claims (in the English Court)
that both parties have agreed an exclusive jurisdiction clause in favour of
the English Court that complies with the requirements of art 17, then: (1)
The English Court is entitled to consider whether, by English law rules, the
relevant clause is an exclusive jurisdiction clause and whether the party
that sued in the Court "first seised" is in breach of it; (2) it can consider
(if necessary) whether the requirements of art 17 are fulfilled; (3) if they
are, then art 17 must take precedence over arts 21 and 22 and so there
is no obligation on the English Court to stay its proceedings in favour
of the Court "first seised"; (4) there is nothing in the Convention that
is inconsistent with a power in the English Court to grant an injunction
to secure the enforcement of an exclusive jurisdiction agreement which
satisfies the requirements of art 17.
40. In the present case it is accepted that the English Court is the one
"second seised". Mr McParland accepts (before the English Courts)
that cl 25 is, by English law, an exclusive jurisdiction clause. (Mr
McParland submits, of course, that this issue should be decided by the
Antwerp Court as the Court "first seised".) Therefore, on the basis of
the conclusions in the Continental Bank case, this Court is entitled to
consider whether the requirements of art 17 are fulfilled. If they are, then
that case has decided in terms that the Court has jurisdiction to grant an
anti-suit injunction and need not grant a stay under arts 21 or 22 of the
Convention. Accordingly I have concluded that I must follow that case
unless Mr McParland can distinguish it in some way.
41. Can the Continental Bank case be distinguished?
The Human Rights Act points. I think that, logically, the two Human Rights
Act, 1998 ("HRA") points come first. …
42. …Article 6 of the ECHR does not provide that a person is to have an
unfettered choice of tribunal in which to pursue or defend his civil rights.
If the article were to be given that broad reading then, taken to its logical
conclusion, it would mean that the whole of the Brussels Convention
jurisdiction scheme would itself be incompatible with a person's art 6
rights if the forum designated by the Convention's rules were contrary
to the litigant's choice of Court. Article 6 of the ECHR does not deal at all
with where the right to a "fair and public hearing before an independent
and impartial tribunal established by law" is to be exercised by a litigant.
The crucial point is that civil rights must be determined somewhere by
a hearing and before a tribunal in accordance with the provisions of art
6. In this case if a Court determines that the parties themselves have
agreed to determine their rights exclusively in the Court of a particular
country (and one that is a contracting party to the ECHR), the art 6 right
is, on the face of it, upheld. Moreover, there is no suggestion in this case
that the "choice" of the English Courts has been imposed arbitrarily.
Nor is there any suggestion that the receiver parties could not get a
"fair and public hearing" in the English Court or that it would not be an
"independent and impartial tribunal".
43. Accordingly I conclude that the grant of an anti-suit injunction to
restrain the receiver parties from pursuing the proceedings in the Antwerp
Court would not be unlawful under s 6 of the HRA. It must follow that
there is no need, pursuant to s 3 of the HRA, to construe s 37 of the SCA,
1981 in a way that must restrict the power of the Court to grant anti-suit
injunctions.
44. Therefore the Continental Bank case cannot be distinguished on the
basis that the legislative basis for the grant of anti-suit injunctions has
now changed by virtue of the introduction of the HRA.
45. Section 49 of the Civil Jurisdiction and Judgments Act, 1982: Next Mr
McParland submitted that an argument based on s 49 of the SCA, 1981
was apparently not advanced in the Continental Bank case. The argument
is that s 49 does not specifically preserve the power of the English Courts
to grant an injunction to restrain anyone from taking proceedings in a
Brussels Convention Court in breach of an exclusive jurisdiction clause.
That is true. But the argument that therefore the English Court has
no power to grant anti-suit injunctions against taking proceedings in
a Convention Court in breach of an exclusive jurisdiction agreement is
incorrect. Section 49 preserves the power of a United Kingdom Court
to "stay, sist, strike out or dismiss any proceedings" before it, on the
ground of "forum non conveniens or otherwise where to do so is not
inconsistent with the 1968 Convention (or as the case may be, the Lugano
Convention)." So it expressly preserves the power of the Courts to do any
of those things when they are consistent with the Conventions. It does
not refer to injunctions at all, let alone anti-suit injunctions directed at
proceedings in Courts in other states. Therefore the general rule, set out
in s 37 of the SCA, 1981, must still apply. That gives the Court power to
grant an interlocutory or final injunction "in all cases in which it appears
to the court to be just and convenient to do so". The Court of Appeal in
the Continental Bank case expressly held that it is consistent with the
Brussels Convention to exercise the jurisdiction conferred by s 37 to
grant an anti-suit injunction where there is a valid exclusive jurisdiction
agreement that fulfils the requirements of art 17 of the Convention and it
is just and convenient to grant an injunction.
46. The Overseas Union case: Then Mr McParland suggested that the
Court of Appeal might not have taken into account sufficiently the decision
of the European Court of Justice in Overseas Union Insurance Ltd v New
Hampshire Insurance Co, [1992] 1 Lloyd's Rep 204; [1992] 1 QB 434.
In that case the ECJ held that in general a Court "second seised" must
stay its proceedings in favour of the Court "first seised" even if there is a
challenge to the jurisdiction of the Court "first seised". However, in giving
judgment the ECJ specifically noted that --
... nothing in the documents before the court suggests that the main
proceedings fall within an exclusive jurisdiction laid down in the
Convention, in particular in article 16 thereof": [see par 20 p 217; p 458].
In the English case of IP Metal Ltd v Ruote OZ SpA (No 2), [1994] 2
Lloyd's Rep 560 at p 563, Mr Justice Waller noted that in the Overseas
Union case the ECJ --
... left clearly to one side cases relating to art 16 and art 17, but
recognized that there was a distinct difference between the situations
under 16 and/or 17 as compared with ordinary jurisdiction.
Both the Overseas Union case and the IP Metal case were cited to the
Court of Appeal in Continental Bank. Indeed Lord Justice Steyn specifically
refers to the IP Metal case at p 54, col 1; p 597D of his judgment.
Therefore I am sure that the Court of Appeal had the Overseas Union case
well in mind. It must also have noted and approved the reservation of the
ECJ that was identified by Mr Justice Waller in the IP Metal case.
47. Alteration of the terms of art 21 of the Brussels Convention: Mr
McParland's next point was that the terms of art 21 in the Brussels
Convention had been altered since the Continental Bank case. At that
time the wording of art 21 was that of the 1978 Accession Convention,
ie the version agreed by the UK, Denmark and Ireland on their accession
to the Rome Treaty. But the current wording (in force in both the UK and
Belgium since 1997) is that of the San Sebastian Convention, which was
agreed when Spain and Portugal acceded to the Rome Treaty in 1989.
(This brought the wording of the Brussels Convention into line with that of
the Lugano Convention between EU and EFTA countries.) The difference in
the wording on which Mr McParland relied is this: under the old wording of
art 21 a Court second seised had to decline jurisdiction altogether, unless
the jurisdiction of the Court first seised was contested, in which case the
Court second seised could decide simply to stay its proceedings. However
under the San Sebastian wording the Court second seised is obliged only
to stay its proceedings "until such time as the jurisdiction of the court
first seised is established". Then "where the jurisdiction of the court first
seised is established", any other Court "shall decline jurisdiction in favour
of that [ie the first seised] court". …
49. In my view the new wording of art 21 does no more than the authors
intended. The object of the change was to deal with possible time
bar problems that might arise if a Court second seised had to decline
jurisdiction definitively. If a party had started proceedings in a second
Court, then under the old wording that Court had to decline jurisdiction,
thus terminating those proceedings, unless the jurisdiction of the first
Court was contested at that stage, in which case the second Court could
stay its proceedings. If, ultimately the Court first seised decided that it
did not have jurisdiction, it might be impossible for a party to restart
proceedings in the second Court again if formerly it had affirmatively
declined jurisdiction. Under the revised wording the ability to revive the
stayed proceedings would be preserved. (See: par 28 of the report on
the San Sebastian Convention by Almeida Cruz, Desantes Real and Paul
Jenard.)
50. To my mind the new wording of art 21 does not deal expressly with
the specific issue of whether the Court second seised is bound to stay its
proceedings automatically where it is asserted that there is an exclusive
jurisdiction agreement (fulfilling art 17's requirements) in favour of
that Court as between the parties before that Court. The new wording
therefore does not affect either the reasoning or the conclusions of the
Court of Appeal in the Continental Bank case on the interpretation of art
21 and the relationship between arts 17 and 21.
51. Can the Continental Bank case be distinguished on the facts?
Next Mr McParland submitted that the Continental Bank case could be
distinguished on the facts and this meant that a different legal conclusion
must follow. …
(1) First he pointed out that in the Continental Bank case there was
evidence that the bank had submitted to the jurisdiction of the Greek
Court, so that the Greek Court would not have considered a jurisdiction
argument. In contrast, in the present case the jurisdiction point has been
taken by the shipowners before the Antwerp Court and it would deal with
the point next January. In Continental Bank Lord Justice Steyn dealt with
the submission point as follows (p 512, col 1; p 598C):
It does not appear that the Greek Court will consider the impact on its
jurisdiction of the exclusive jurisdiction agreement and art 17 of the
Convention. But we do not rest our judgment on this point. [Emphasis
added].
The last statement makes it clear that the fact that the bank had
submitted to the Court in Greece made no difference to the result in the
Court of Appeal. That must mean that if there has been no submission
to the Court first seised (as in the present case), then the reasoning and
conclusion of the Court of Appeal would have remained the same.
(2) The other factual point Mr McParland identified was that the Court
of Appeal found that under Greek procedural rules the bank could only
challenge the Court's jurisdiction when it filed a full defence on the merits,
with attendant costs and effort. That contrasted with the position in the
Antwerp Court in this case. But once again Lord Justice Steyn said: "we
do not rest our judgment on this point". (see p 512, col 1; p 598E).
Therefore that fact cannot have any effect on the legal conclusion that the
Court of Appeal reached.
(3) I also note that the Court of Appeal dealt with these factual issues
under the general heading of "The exercise of discretion under English
law"; see p 511, col 2; p 597E. This makes it even clearer that the Court
had already decided the principle of law concerning the relationship
between arts 17 and 21 and the jurisdiction of the English Court to grant
an anti-suit injunction.
52. Conclusion on whether the Continental Bank case can be
distinguished.
My conclusion is that I am bound by the principles stated in the
Continental Bank case. None of the points raised by Mr McParland
persuade me that it can or should be distinguished from the present case
on the issues of principle.
53. I note in passing that Mr McParland did not argue that it was legally
significant that in the Continental Bank case it was common ground
that the exclusive jurisdiction clause fulfilled the requirements of art 17,
whereas in this case there was no such agreement. I think that he was
right not to take that point, at least in this Court. It must follow from the
Court of Appeal's conclusion that art 17 takes precedence over arts 21
and 22, that the Court considering the case has to decide first whether
art 17 operates at all. If it does then it will take precedence over arts 21
and 22. On the reasoning of the Court of Appeal, the Court second seised
can conclude that art 17 has precedence. It must follow that a Court
second seised can and should decide whether art 17 is applicable before it
concludes that art 17 has precedence.
Questions Two: Does cl 25 of the bill of lading fulfil the requirements of
art 17?
54. It was agreed that the relevant version of art 17 is that contained in
the San Sebastian Convention. The relevant provisions are:
If the parties, one or more of whom is domiciled in a Contracting State,
have agreed that a court or the courts of a Contracting State are to have
jurisdiction to settle any disputes which have arisen or which may arise
in connection with a particular legal relationship, that court or those
courts shall have exclusive jurisdiction. Such an agreement conferring
jurisdiction shall be either --
(a) in writing or evidenced in writing; or
(b) in a form which accords with practices which the parties have
established between themselves; or
(c) in international trade or commence, in a form which accords with a
usage of which the parties are or ought to be aware and which in such
trade or commerce is widely known to, and regularly observed by, parties
to contracts of the type involved in the particular trade or commerce
concerned...
55. It was agreed that one of the parties to the alleged agreement,
the shipowner, is domiciled in a Contracting State, ie the UK. It was
further agreed that the first stage of the enquiry is to see whether the
requirements of art 17 are satisfied as between the original parties to
the bill of lading, ie the shipowners and the shippers. Mr Dunning for
the shipowners submitted that he could rely on both the second and the
third limbs of art 17. He reserved his position on whether the first limb
was satisfied. Although Mr McParland made submissions on the nature of
the requirements under art 17 as a matter of law, he made no positive
submissions on the facts; nor did he question the evidence relied on by
the shipowners.
56. Second limb: is the exclusive jurisdiction agreement in a form which
the parties have established between themselves?
This is a question of fact. It is to be determined without reference to any
particular national laws on the point. The shipowners put in evidence
in support of their submission that this form of bill of lading and cl 25
in particular had been much used as between these shipowners and
the first two defendants as shippers. There was no evidence from the
shippers or the receiver parties to rebut that evidence. Therefore, Mr
Dunning submitted, there was clear evidence that there was an exclusive
jurisdiction agreement in a form which accords with the practices which
the parties have established between themselves. …
60. On the basis of this uncontradicted evidence I am satisfied that,
as between the first and second defendant and the shipowners, the
agreement in cl 25 of the bills of lading was "in a form which accords with
practices which the parties have established between themselves".
61. Third limb: is the exclusive jurisdiction agreement concerned with
international trade and in a form which accords with the usage of which
the parties are or ought to have been aware and which in such trade
or commerce is widely known to, and regularly observed by parties to
the contracts of the type involved in the particular trade or commerce
concerned?
In a series of cases on earlier versions of art 17 (where what is now the
third limb appeared as the second limb) the European Court of Justice has
established that:
(1) Article 17 sets down independent rules as to the form the jurisdiction
clause must meet so as to provide legal certainty and uniformity in
Convention countries and to ensure that parties have consented to the
clause; (Elefanten Schuh v Jacqumain, [1981] ECR 1671 at par 25.)
(2) whether a usage exists in a particular trade or commerce is not
to be determined by reference to any national law or in relation to
international trade and commerce in general, but in relation to the
trade or commerce in which the parties to the contract operate;
(Mainschiffahrts-Genossenschaft v Les Gravieres Rhenares, [1997] QB
731: "the MSG case" -- par 23.)
(3) it is for the national Court to determine first: whether the contract
is one forming part of International trade or commerce; and secondly
whether there is a usage in the branch of international trade or commerce
in which the parties operate; (The MSG case par 21.)
(4) the national Court will be entitled to presume consensus on the part of
the contracting parties to a jurisdiction clause if the Court is satisfied that
commercial practices exist in the relevant branch of international trade or
commerce of which the parties are or ought to be aware. (The MSG case
pars 19 and 20.) …
63. There is unchallenged evidence from Mr Ghirardani, on which Mr
Donoghue relies, that this form of bill of lading, including cl 25 is one
that would normally be encountered in a modern-day international
liner service. Similar forms (including English jurisdiction clauses) are
used by six other international shipowners or carriers. These six include
carriers on a liner basis to West Africa. Mr Girardani also states, and
this is not challenged, that the English jurisdiction clauses are regularly
observed and that parties to bills of lading containing English jurisdiction
clauses regularly comply with them if disputes arise and thus commence
proceedings in England. There is also the unchallenged evidence that the
first two defendants (Mr H. and Fayad H. Co) regularly engage in the West
Africa liner trade and have been parties to contracts of carriage evidenced
by bills of lading on this form containing this English jurisdiction clause.
64. I am therefore satisfied that cl 25 is a jurisdiction clause in a form
which accords with a usage of which the shipowners and the Liberian
defendants are or ought to be aware. I am also satisfied that cl 25
is a jurisdiction clause that is in a form that is widely known to and
regularly observed by parties to bill of lading contracts of carriage in the
international liner services, including liner services between Europe and
West Africa. It follows from the decision of the ECJ in the MSG case that
the Court is entitled to presume that there is agreement to the jurisdiction
clause as between the parties to the contract (ie in this case the Liberian
defendants and the shipowners). …
68. The unchallenged evidence is that under Belgian law the defendant
insurers have the same rights towards the carrier as the assured. This
if the English Court decides (applying English law) that the receivers
are bound by the jurisdiction clause, then, under Belgian law the clause
will also bind the defendant insurers. (Mr Dongohue's second witness
statement par 2(1), setting out the advice that he has received from Clive
van Aerde & Partners of Bruges.)
69. I therefore conclude that cl 25 of the bill of lading is a valid agreement
between the shipowners and all defendants for the purposes of art 17 of
the Brussels and Lugano Conventions. As I am bound by the decision of
the Court of Appeal in the Continental Bank case, this means that I must
hold that art 17 has precedence over arts 21 and 22 of the Conventions.
Therefore there should not be a stay of the English proceedings, even
though the English Court was seised second of the issues.
70. Breach of cl 25
…It is clear that the receiver parties have every intention of continuing
those proceedings. Mr Wijffel's evidence demonstrates that the receiver
parties have been advised that they are entitled to do so because, as
a matter of Belgian law: (1) the Antwerp Court has jurisdiction over
the claim against the shipowners; (2) by operation of Belgian private
international law, Belgian law governs the action in the Belgian Courts;
(3) the jurisdiction and law clause of the bill of lading would not bind the
third to 42nd defendants in the English action, so that the proceedings
have been correctly commenced in Antwerp. (Paragraph 18 of Mr Wijffel's
witness statement.)
71. I must conclude that the receiver parties are in breach of the
exclusive jurisdiction clause in cl 25 of the bill of lading and that they
intend to continue to breach the terms of the clause.
72. This means, following the Continental Bank case that the English
Court has jurisdiction to consider whether to grant an anti-suit injunction
against the defendants to enforce the terms of cl 25. That is the third
question I must consider.
Question Three: should the Court exercise its discretion to grant an anti-
suit injunction?
73. In the Continental Bank case itself, The Angelic Grace, [1995] 1
Lloyd's Rep 87 and Donohue v Armco Inc, [2000] 1 Lloyd's Rep 579 the
Court of Appeal has held that if the English Court is satisfied that there
is a valid exclusive jurisdiction clause in favour of the English Courts that
has been broken by one of the parties to the clause, then the English
Court will give effect to it by granting an anti-suit injunction unless
"special countervailing factors" or "good reason" or "strong reason or
"strong cause" is shown why the injunction should not be granted. (The
first phrase is from Lord Justice Steyn's judgment in the Continental Bank
case at p 512, col 1; p 598F; the second is from Lord Justice Millett's
judgment in The Angelic Grace at p 96. In Donohue v Armco Inc Lord
Justice Stuart-Smith said (at par 34) that "we should adhere to the
expression 'strong cause' or 'strong reason'". Lord Justice Brooke held
that the same phrase should be adopted: see par 60; Lord Justice Sedley
takes the same approach at par 98.)
74. Mr Dunning advances a number of reasons in support of the grant of
an anti-suit injunction. The principal ones are:
(1) that the choice of English jurisdiction by the shipowner is not unusual;
it is commonly made and respected in the liner trade;
(2) that the carrier's domicile is England so it is natural that it should
choose England as the forum for disputes concerning carriage in its
vessels;
(3) that, examined from an English conflict of laws perspective, the
disputes are governed by English law and so they ought to be dealt with
by an English Court. However it appears that a Belgian Court would hold
that the matter was governed by Belgian law, rather than English law;
(4) that the Belgian proceedings have not progressed very far. If it is
relevant the jurisdiction point has been raised on behalf of the shipowners
at an early stage. There has been no ruling on this issue by the Belgian
Court;
(5) that the defendants would not be placed in any difficulty in pursuing
their shortage claims in the English Court. The shipowners offered to
provide security for the defendant's shortage claim in the English Court.
This would be done by a P&I Club letter of undertaking for the principal
sum claimed plus interest and costs, totalling US$120,000. (See Mr
Donoghue's witness statement par 18)
75. Mr McParland did not really challenge any of those points. But he
said that there was one very strong reason why an anti-suit injunction
should not be granted in this case. It was that it would be offensive to
the Antwerp Court because it would regard the English Court as usurping
its own function, as the Court first seised, of deciding the two issues
concerning jurisdiction under the Brussels Convention. The two issues are,
of course, whether the jurisdiction clause satisfies art 17 and, therefore,
whether the English or the Antwerp Court should hear the claim. Mr
McParland suggested that the Belgian Court might refuse to serve any
anti-suit injunction within Belgium. He also submitted that this might
be the case in other Convention states where the receiver parties are
domiciled.
76. Mr McParland relied in particular on the case of Philip Alexander
Securities and Futures Ltd v Bamberger and Others, [1997] I L Pr 73.
The Court of Appeal (See the judgment of Lord Justice Leggatt (for the
Court) at par 48 on p 118.) commented, at the end of its judgment, that
the practice of the English Court granting anti-suit injunctions may require
reconsideration in the light of the facts of that case. That was an unusual
case concerning disputes between a futures trading house and some of its
German customers. Each customer agreement had a London arbitration
clause in it. Various customers brought proceedings in German Courts.
But the trading house brought arbitration proceedings in London against
those same customers and won. It then sought orders from the English
Court to enforce the arbitration awards and injunctions to prevent the
customers proceeding in the German Courts. The customers ignored the
orders. Some German Courts refused to serve the English Court's orders
on the basis that to do so would interfere with German Sovereignty.
77. When the matter came before Mr Justice Waller the position was that
various German Courts had refused to enforce the arbitration provisions
and had given decisions on the merits in favour of the customers. The
trading house sought declarations from the English Court that the
arbitration provisions were effective; that the judgments on the merits of
the German Courts should not be recognized by the English Courts and
(in one case only) an injunction to restrain German proceedings. In view
of the potential clash between the German and English Courts, Mr Justice
Waller heard argument from amici curiae because the German customers
did not appear and were not represented.
…Mr Justice Waller emphasized (i) that in this case (unlike The Angelic
Grace) the German customer had challenged the arbitration clause by
bringing proceedings in the German Courts; (ii) the German Courts had
upheld that challenge, based on German consumer legislation; (iii) the
German Courts clearly concluded that there was no obligation to stay the
German proceedings pursuant to the New York Convention on arbitration
proceedings; (iv) the German Courts had been offended at the attempt
by the English Court to prevent the German proceedings by injunction,
regarding it as an interference with German sovereignty. Taking all those
factors into account, Mr Justice Waller concluded that he should not
exercise his discretion to grant an injunction to prevent continuation of
the German proceedings in the case of Herr Reidel.
80. In the Court of Appeal the Judges did not deal with those points. They
concluded that the arbitration agreements were not applicable. However,
as I have noted, the Court made general comments about the practice of
granting anti-suit injunctions. …
87. Mr McParland's last point was that the claimants had not shown
that damages would be an inadequate remedy. But in my view if an
applicant shows that a defendant is in breach of an exclusive jurisdiction
clause and as a result a case is being pursued in a tribunal that was
not agreed, damages are very unlikely to be an adequate remedy. The
consequence of permitting those proceedings to carry on in breach of the
parties' agreement would be a judgment of the "non-agreed" tribunal.
That might be unfavourable to the applicant wishing to enforce the
exclusive jurisdiction clause. The issue of enforcement might then arise;
the applicant wishing to enforce the exclusive jurisdiction clause may
have to try and challenge the judgment. All these difficulties cannot be
adequately met by damages. Furthermore, as Lord Justice Steyn put it in
the Continental Bank case at p 512, col 1; p 598F, in this type of case the
test is whether damages would be "an effective remedy". I respectfully
agree with his view that damages are plainly not an effective remedy for
breach of an exclusive jurisdiction clause.
Folio 573: Exercise of discretion to grant an anti-suit injunction
88. I have concluded that: (i) I am bound by the Continental Bank case;
(ii) cl 25 of the bill of lading fulfils the requirements of art 17 of the
Brussels/Lugano Conventions; and (iii) there are no "strong reasons" or
"special countervailing factors" against granting an anti-suit injunction in
this case.
89. It follows that I must reject the application of the receiver parties to
set aside the order of Mr Justice Thomas giving permission to serve the
claim form and the application notice of the claimants. Further I must also
refuse the receiver parties' application for a stay of this action.
90. The claimant's application notice of May 11, 2000 specifically seeks
an injunction against the receiver parties to restrain them from carrying
on the Antwerp proceedings. I have previously noted the willingness of
the claimants to give security in this Court for the cargo claim. I think that
this security should be provided as a condition of granting an injunction.
On that basis I intend to exercise my discretion to grant an injunction
against the receiver parties to restrain them from carrying on the Antwerp
proceedings.
91. The claimants also seek an injunction, against all the defendants,
restraining them from pursuing the alleged cargo shortage claim against
the current claimants anywhere other than before the High Court. In
principle I am in favour of exercising my discretion to grant such an
injunction. But I will hear Counsel on the precise form of the order in case
any particular point arises.
92. I would also like to hear from Counsel on whether an "anti-arrest"
injunction is needed if the claimants provide security as I think that they
should.
93. My current view is that the claimants do not need and should not have
an order from this Court granting them permission to apply to the Court
in Belgium and possibly elsewhere, to enforce the orders that I intend to
make. That order would, I think, smack of the English Court interfering
in the internal affairs of foreign Courts and so be contrary to principles of
comity. But if necessary I will hear argument on the point.
94. As for the application for permission to serve the order made on the
defendants in Liberia and other countries, I also wonder whether that is
necessary in the case of the receiver parties. They are represented by
solicitors in England and I would have thought that the order could be
served on their solicitors, here in London. As for the Liberian defendants I
will, if necessary, grant permission to serve the orders on them in Liberia.
Folio 572: should an anti-suit injunction be granted?
95. The defendants have not been represented before me because they
have not acknowledged service of the pleadings on them. On the basis of
my findings set out above, I conclude that:
(1) The defendants are bound by the exclusive jurisdiction clause in the
bill of lading. This is because they were the lawful holders of the bill of
lading and took delivery of the cargo in Liberia. They are therefore subject
to the same rights and liabilities as the Belgian shippers.
(2) By bringing the Antwerp proceedings the defendants have breached
the exclusive jurisdiction clause in the bill of lading. They have refused to
terminate the Belgian proceedings and even enquired of the shipowners'
Belgian lawyers about the shipowners' defence submissions in the Belgian
proceedings. So the defendants' breach continues.
(3) Clause 25 fulfils the requirements of art 17 of the Brussels/Lugano
Conventions.
(4) I am bound by the Continental Bank decision, so that the Court
has jurisdiction to grant an anti-suit injunction against the defendants,
notwithstanding that the English Court is "second seised" of the cargo
shortage claim concerning this shipment.
(5) There are no "strong reasons" or "special countervailing factors"
why an anti-suit injunction should not be granted in this case. If I had
concluded that there was force in the submission of Mr McParland that
the Belgian Courts would have been affronted at the grant of an anti-suit
injunction, then this factor would have weighed heavily in this case also.
But I have concluded that there is very little force in that submission, if
any.
96. Accordingly I will exercise my discretion to grant the injunctions
sought in Folio 572, but subject to the same requirement that the
claimants in this Court provide proper security for the cargo claim. I
will hear Counsel on whether an "anti-arrest" injunction is still needed
in this action. As in Folio 573, I think that there should not be an order
permitting the claimants to apply to the Belgian Courts to enforce the
English Court's orders. But will give permission to serve the order made in
Folio 572 on the Liberian defendants out of the jurisdiction.
DISPOSITION:
Judgment accordingly.