Al-Bassam v Al-Bassam

An English court may temporarily restrain foreign proceedings to protect its own process where the proceedings duplicate issues already submitted to England and impose oppressive burdens. The restraint should be limited to what is necessary. A final anti-suit injunction cannot be justified merely by fears that the foreign proceedings may be unfair or that a resulting judgment may later be refused recognition. Recognition is considered after judgment, under the English court’s own rules. Threshold issues such as due execution and domicile should generally be determined before potentially irrelevant questions of foreign succession law.

The appellant claimed to be the widow and sole beneficiary under the will of a wealthy Saudi Arabian national who died in London. The respondent, the deceased’s half-brother, claimed the estate as sole heir under Shari’a law. High Court proceedings concerned the marriage, domicile, validity of the will and succession. Mr Justice Hart refused interim disclosure and restraint orders and refused an amendment introducing a constructive-trustee claim on 6 November 2002. The appellant appealed. The respondent later began Saudi proceedings concerning the will and succession. Mr Justice Lewison granted an anti-suit injunction on 2 October 2003, and the respondent appealed. The central issue was how the English and Saudi proceedings should be managed while due execution and domicile remained undecided.

1. Disposition. The appeal from Mr Justice Hart’s order was allowed only as to amendment of the particulars of claim. The refusals of disclosure, restraint on dealing with assets and related interim relief were upheld. The appeal from Mr Justice Lewison’s order was allowed to the extent that the indefinite restraint was set aside and replaced by an interim restraint until determination of the threshold issues of due execution and domicile by the High Court, or further order.
2. Case management. The threshold issues should be determined first. If the will was not duly executed, questions of substantive validity under Islamic law would not arise. If the deceased was domiciled in England or India, those questions would be irrelevant to succession in the English proceedings. If due execution was established but domicile was not, Islamic-law issues might become necessary. A Saudi determination would not remove the need to determine due execution and domicile in England.
3. Recognition of foreign judgments. The distinction between choice-of-law rules and recognition rules was material. The English court must apply its own choice-of-law rules unless and until it is faced with a foreign judgment which its recognition rules require it to recognise. The court was prepared to assume, without deciding, that a later Saudi determination might have to be recognised if the relevant conditions were met.
4. Anti-suit relief. The anti-suit principles discussed by Lord Goff in Société Nationale Industrielle Aerospatiale v Lee Kwee Jak and another [1987] 1 AC 871 and Airbus Industrie GIE v Patel and others [1999] 1 AC 119 did not support a final restraint based on anticipated unfairness in Saudi Arabia. The English court should not restrain foreign proceedings on the basis of its own prediction that the foreign trial may fail to meet European Convention on Human Rights standards. That issue belonged to the later recognition analysis. A limited interim restraint was justified because the respondent had submitted to the English jurisdiction, the Saudi proceedings covered issues already before the English court, no immediate Saudi determination was shown to be necessary, and the restraint protected the English process from misuse.
5. Amendment and jurisdiction. Amendment of the pleading was distinct from the question whether interim orders should be made. Refusal of interim relief did not justify preventing the claimant from pursuing a properly arguable constructive-trustee claim at trial. The respondent had submitted to the English court’s jurisdiction concerning entitlement to assets wherever situated and could not raise a late jurisdictional objection to resile from that position.

• Court of Appeal (Civil Division): appeals from orders of the High Court, Chancery Division. The appeal from Mr Justice Hart’s order of 6 November 2002 was allowed only as to amendment of the particulars of claim. The appeal from Mr Justice Lewison’s order of 2 October 2003 was allowed to replace the indefinite restraint with a limited interim restraint.