23. The present type of restraining order is commonly referred to as an
"anti-suit" injunction. This terminology is misleading since it fosters the
impression that the order is addressed to and intended to bind another
court. It suggests that the jurisdiction of the foreign court is in question
and that the injunction is an order that the foreign court desist from
exercising the jurisdiction given to it by its own domestic law. None of this
is correct. When an English court makes a restraining order, it is making
an order which is addressed only to a party which is before it. The order is
not directed against the foreign court.
24. The power to make the order is dependent upon there being wrongful
conduct of the party to be restrained of which the applicant is entitled
to complain and has a legitimate interest in seeking to prevent. (...)
[P]olicy considerations enter into the decision whether or not to make the
restraining order but only as constraints upon the exercise of the power.
(...)
26. The making of a restraining order does not depend upon denying,
or preempting, the jurisdiction of the foreign court. (...) International
recognition of the jurisdiction assumed by the foreign court only becomes
critical at the stage of the enforcement of the judgments and decisions
of the foreign court by the courts of another country. Restraining orders
come into the picture at an earlier stage and involve not a decision upon
the jurisdiction of the foreign court but an assessment of the conduct
of the relevant party in invoking that jurisdiction. English law makes
these distinctions. Indeed, the typical situation in which a restraining
order is made is one where the foreign court has or is willing to assume
jurisdiction; if this were not so, no restraining order would be necessary
and none should be granted. (...)
30. The question is whether the English law is consistent with the Brussels
Convention. (...)
34. The primary argument of the defendants was that the power to grant
a restraining order was inconsistent with the Convention because it was
inconsistent with the jurisdiction conferred by the Convention upon the
courts of other Convention countries and their competence to decide their
own jurisdiction. This argument would be sound if the restraining order
was directed to the foreign court not to the party whose conduct was in
question. As explained, the order is not addressed to the foreign court
and does not bind it. It does not involve a decision upon its jurisdiction:
indeed, it assumes that the foreign court will hold that it has jurisdiction
under its own law. The decision involved is about the quality of the
conduct of the party sought to be restrained and the need to protect
existing English proceedings. (...) The conduct of the defendants was
unconscionable because, in bad faith, it was designed to obstruct and
frustrate the existing English proceedings, not because the Madrid court
was a forum non conveniens. (...)
36. In so far as a purpose of the Convention is to limit the risk of
irreconcilable judgments, the use of restraining orders by the English
courts is effective to achieve or aid this result. (It has achieved it in this
case: the probability of irreconcilable judgments has been avoided.) It
does so by granting a remedy which does not attack the jurisdiction of the
foreign court. It bases the grant of that remedy upon a ground which does
not involve a denial of the jurisdiction of the foreign court. It achieves a
result intended by the Convention in a manner which is consistent with
the Convention.
37. The secondary argument of the defendants was that to grant a
restraining order on the ground of obstructing in bad faith existing English
proceedings was inconsistent with the Convention. (...) It was argued
that what Mr Turner was complaining about is being sued in Spain and
that, accordingly, it should be a matter for the Spanish courts alone to
decide whether what the defendants were doing in the Madrid action
was objectionable and, if they held that it was, themselves to make an
appropriate order. This argument misstates what the English court has to
consider. It has to consider the significance of the defendants' conduct for
the proceedings in England. That is a matter for the English court not the
Spanish court and there is no reason, whether under the Convention or
otherwise, why the Spanish court should concern itself with the protection
of the English proceedings. It was further argued that the grant of an
order restraining the obstruction in bad faith of English proceedings was
contrary to the spirit of the Convention since not all Convention countries
choose to give their courts that power and there would be a "loss of
equality" between courts. This argument takes the argument too far. It
is not the purpose of the Convention to require uniformity but to have
clear rules governing jurisdiction. The grant of the restraining order is not
concerned with and does not deny the jurisdiction of the foreign court.
(...)
39. Were the question of interpretation one which it was for your
Lordships' House alone to decide, I would reject the defendants'
arguments and dismiss the appeal primarily upon the ground that the
defendants' arguments misstate the English law and that therefore their
arguments upon the Convention are misplaced. (...)"