Glencore International AG v Exter Shipping Ltd & Ors

An anti-suit injunction under Supreme Court Act 1981, section 37(1), requires personal jurisdiction over the respondent, unconscionable foreign proceedings, and a clear need to protect existing English proceedings. England being the natural forum is necessary but insufficient.

A foreign claimant who invokes the English court’s jurisdiction submits without territorial reservation to the incidents of that litigation. Technical departures from conventional pleadings do not prevent an application for an injunction in existing proceedings.

Foreign proceedings are unconscionable where they duplicate, contradict, or evade issues already determined, or which should have been raised, in coordinated English litigation, and are pursued without legitimate justification so as to harass the opposing party.

Following the collapse of Metro Trading International Inc, extensive English proceedings concerning title to fuel oil and the relationship between Glencore and Metro were managed as phased litigation. The four foreign shipowners participated in that litigation. They were bound by the determinations made in the phases in which they did not actively participate.

After the Phase 2 trial, the shipowners commenced proceedings in Georgia against Glencore, Metro and an alleged joint venture. They sought indemnity and damages connected with the arrest and detention of their vessels. Glencore obtained an anti-suit injunction from Moore-Bick J in the Commercial Court on 8 November 2001.

The shipowners appealed. The central issues were whether they were amenable to the English court’s jurisdiction, whether Glencore could seek the injunction procedurally, and whether the Georgia proceedings were unconscionable and required restraint to protect the English litigation.

1. Appeal dismissed unanimously. Rix LJ, with whom Robert Walker LJ and the Vice-Chancellor agreed, held that the shipowners were amenable to the English court’s personal jurisdiction. A foreign party which voluntarily commences proceedings in England submits, without territorial reservation, to the incidents of that litigation, including a counterclaim. That differs from a foreign defendant brought before the court under the long-arm procedure, whose submission is ordinarily claim-specific.

2. Glencore was a party to the litigation to which the shipowners had submitted. The Metro litigation could not realistically be divided into isolated folio actions. Its phased case-management structure bound the shipowners and encompassed the issues raised by the Georgia complaint. The later discontinuances did not alter that conclusion.

3. An anti-suit injunction did not require a formal claim or counterclaim. It could be sought by application in existing proceedings. The court therefore rejected the suggested procedural lacuna. Rix LJ added, without deciding the point, that there was considerable support for an inherent procedural jurisdiction to protect the court’s process where no specific rule applied.

4. Under section 37(1) of the Supreme Court Act 1981, an injunction was just and convenient only if the foreign proceedings were unconscionable and a clear need existed to protect legitimate English proceedings. The English court was the natural forum for the coordinated Metro litigation, but that fact alone would not suffice.

5. The Georgia complaint overlapped with, contradicted, or sought to revive issues already decided, abandoned, or deferred in Phase 2. The shipowners gave no legitimate explanation for commencing it while withdrawing related claims in England and Singapore. The judge was entitled to infer a strategy of harassment and vexation, designed to multiply proceedings and postpone resolution. That conduct was against conscience and the ends of justice. No discretionary or comity-based reason justified withholding relief.

6. The injunction therefore remained in force. The shipowners were ordered to pay the costs of the appeal, with £50,000 on account, subject to detailed assessment.

• Court of Appeal (Civil Division): Dismissed the shipowners’ appeal and upheld the anti-suit injunction: [2002] EWCA Civ 528.
• Commercial Court: Moore-Bick J granted Glencore an anti-suit injunction against all four shipowners on 8 November 2001.