Court declines anti-suit injunction on ground of delay, where foreign court originally declined jurisdiction

Hill Dickinson for Claimant, Addleshaw Goddard for defendant

The parties entered into an agreement containing a London arbitration clause, which allegedly governed their subsequent dispute. The defendant commenced proceedings in Indonesia (which were not served on the claimant for over a year). In the meantime, the claimant commenced arbitration in London. The claimant subsequently challenged the jurisdiction of the Indonesian court and also defended the claim (which did not amount to a submission to the jurisdiction). At first instance the Indonesian court held that it did not have jurisdiction, but this was reversed on appeal (and the claimant is appealing that decision to the Indonesian Supreme Court). At that point, the claimant applied to the English court for an anti-suit injunction restraining the Indonesian proceedings.

The recent cases of Ecobank Transnational v Tanoh (see Weekly Updates 25/15 and 1/16) and Essar Shipping v Bank of China (see Weekly Update 42/15), have confirmed the principle that those who seek an anti-suit or anti-enforcement injunction should act promptly, and not await the outcome of a challenge brought in the foreign court. An argument by the claimant that that was the wrong approach was rejected by Phillips J.

The claimant then argued that the court's discretion should be exercised in its favour because it was not to blame for all of the delay in bringing the anti-suit injunction. The judge agreed that the claimant could not be criticised for not applying prior to being served with the Indonesian proceedings. However, "the task for the Court is not to look at periods of delay and attribute blame for them, but to consider whether the application was made promptly and how far, and with what consequences, the foreign proceedings have progressed". Accordingly, the delay during the time when the Indonesian courts had declined jurisdiction should still be taken into account. The claimant had sought to argue that it could not be criticised for failing to apply for the injunction in the period between the time the Indonesian courts declined jurisdiction and the time they reversed that decision. However, Phillips J said that it should have applied for the injunction as soon as it was served with the Indonesian proceedings.

Case Alert - [2016] EWHC 1427 (Comm)