The first instance decision in this case was reported in Weekly Update 25/15. The parties entered into a contract which contained an arbitration agreement. When a dispute arose, the defendant commenced litigation in the Republic of Cote d'Ivoire and the Togolese Republic. The claimant unsuccessfully contested jurisdiction in those proceedings and commenced its own arbitration, but it did not seek an anti-suit injunction from the English courts. The defendant won in the foreign proceedings and sought to enforce judgment. At that point, the claimant applied to the English court for an anti-enforcement injunction. That was refused at first instance, because of the delay in bringing the application.
The claimant appealed that decision and the Court of Appeal has now dismissed the appeal. It was held as follows:
- Although section 32(1) of the Civil Jurisdiction and Judgments Act 1982 provides that the English court is bound not to recognise or enforce a foreign judgment obtained in breach of an agreement between the parties, that is subject to the proviso that the claimant did not submit to the jurisdiction of the foreign court. Section 33 of the same Act provides that there is no submission by reason only of the claimant having appeared in the foreign proceedings to contest jurisdiction or ask for a stay/dismissal. However, it does not say what additional facts are sufficient to establish submission.The Court of Appeal held that the same approach should be adopted as for cases falling within the recast Brussels Regulation. Accordingly, if the foreign court requires the claimant to plead not just to jurisdiction but also to the merits of the case, that will not amount to submission. Here, the claimant had made it clear that it was still objecting to jurisdiction and that issue had not been determined yet.
- However, the test for granting an anti-enforcement injunction is no lower than that for an anti-suit injunction: "In both cases the English court is interfering, albeit indirectly, with the working or output of a foreign court".
- The claimant's argument that there had been a "sea change" in the relevant caselaw regarding the effect of delay on an application was rejected. The court is entitled to take into account the extra expense incurred by the respondent (and the interests of any third parties) prior to the application being made. It cannot be argued that the respondent "has only himself to blame" because of his breach of the agreement: "The court is, in an appropriate case, entitled to be reluctant to use its coercive powers to restrain that which the applicant has in fact allowed to continue without any application for relief for some time. This is especially so if, as appears to me to be the case here, little useful purpose is likely to be served by the party who claims to be entitled to an injunction holding back from claiming it". Nor is it necessary for the respondent to establish detrimental reliance in order to defeat the application.Furthermore, delay and comity are related issues. The burdens imposed on courts, eg long lists and shortage of judges, are such that a late application to the English court will cause a lot of wasted time, effort and expense for the foreign court.
- This reasoning explained why anti-enforcement injunctions are rare: "If… an applicant for anti-suit relief needs to have acted promptly, an applicant who does not apply for an injunction until after judgment is given in the foreign proceedings is not likely to succeed. But he may succeed if, for instance, the respondent has acted fraudulently, or if he could not have sought relief before the judgment was given either because the relevant agreement was reached post judgment or because he had no means of knowing that the judgment was being sought until it was served on him. That is not this case".
Accordingly, the trial judge was entitled to refuse the application because the claimant had delayed making it until after judgment had been obtained in the foreign court.