The effect of delay on an anti-suit injunction application

The claimant sought an anti-suit injunction restraining the defendant from continuing proceedings in China in breach of a London arbitration agreement. The claimant had waited two months before challenging the jurisdiction of the Chinese courts in those proceedings, and a further seven months to bring its application for an injunction in England. The defendant argued that as a result, it would be inequitable to grant the injunction.

Walker J held that the Court of Appeal's decision in the Angelic Grace [1995] had set out two cumulative provisos to the grant of an injunction: "The court need feel no diffidence provided that the injunction is sought promptly and provided that, even if the application cannot be criticised for lack of promptness, the foreign proceedings are not too far advanced. In my view there can be no doubt that lack of promptness alone may justify refusal of an anti-suit injunction".

Reference was also made to the recent case of Ecobank v Tanoh (see Weekly Update 25/15), where an anti-enforcement injunction was refused because of delay (the claimant there having unsuccessfully sought to challenge jurisdiction in the foreign proceedings before then seeking to challenge enforcement in England). Walker J rejected an argument that that case should be distinguished from this one because an anti-suit injunction, and not an anti-enforcement injunction, was being sought here: "It is clear, however, that Knowles J was treating the relevant principles in enforcement cases as being at least no less onerous than those identified in Angelic Grace. Moreover, I consider that the approach adopted by Knowles J is supported by strong public interests in requiring that those who seek an anti-suit or anti-enforcement injunction should act promptly even though, on the facts of a particular case, there has been no detrimental reliance upon the delay".

Finally, although the claimant accepted that there is no requirement for an applicant for an anti-suit injunction first to apply to the foreign court for a stay of the foreign proceedings or to challenge the foreign court's jurisdiction, it sought to argue that it was entitled to first challenge jurisdiction before seeking an anti-suit injunction. Walker J held that if that meant the claimant could thereby delay an application for an injunction, that was wrong: "it is not a question of whether it is reasonable to apply to the foreign court, nor of whether there will be long delay in the foreign court, but a question of whether the application in this court has been made promptly".