Advent Capital Plc v GN Ellinas Imports- Exports Ltd & Anor

A final anti-suit injunction may be revoked under CPR rule 3.1(7) or the inherent jurisdiction where a fundamental subsequent change of circumstances removes the rights which the injunction protects. Accession to the EU and the Judgments Regulation did not retrospectively invalidate an injunction granted before accession to restrain proceedings in a non-member state. However, transitional rules may require an English court to yield jurisdiction over later proceedings where proceedings in the now-member state were commenced before accession and that court has jurisdiction under the Regulation. The injunction remained effective because the parties could still pursue the substantive claim in England.

The claimant insurers sought relief concerning insurance contracts covering cargo lost when the vessel LYNN sank. The assured had commenced proceedings in Cyprus in breach of an exclusive English jurisdiction clause. Morison J granted a permanent anti-suit injunction restraining continuation of the Cypriot proceedings.

After Cyprus joined the European Union on 1 May 2004, the assured applied to revoke the injunction and to set aside or stay a later English declaration action. The central issues were whether accession and the Judgments Regulation constituted a fundamental change of circumstances, and whether Articles 27, 28 and 66 required the English proceedings to yield to the earlier Cypriot proceedings.

1. Power to revoke. A final injunction may be revisited under Civil Procedure Rules 1998, rule 3.1(7), or the inherent jurisdiction where there has been a material and fundamental change of circumstances, or where the rights protected by the order have subsequently ceased to exist or become unenforceable by statute or operation of law. The jurisdiction is not a means of re-arguing the original application.
2. Effect of accession on the injunction. The anti-suit injunction was granted before Cyprus became a member state. Turner v Grovit [2004] 2 Lloyd’s Rep 169 concerned the incompatibility of a new anti-suit injunction with the Convention regime. It did not retrospectively destroy a pre-accession order or accrued rights protected by that order. Article 66 contained no transitional provision having that effect.
3. Transitional jurisdiction. Following Von Horn v Cinnamond [1997] ECR 1-5467, Article 66 could apply where proceedings in a non-member state were commenced before accession and competing proceedings in the member state were commenced after accession. The reasoning did not extend to proceedings in both jurisdictions commenced before accession, or to an English judgment obtained before accession. The limitation recognised in Davy International Ltd v Voest Alpine Industrianlagenbau GmbH [1999] 1 All ER 103 was followed.
4. Declaration action. The Nicosia court was first seised. Subject to the pending Cypriot appeal, its determination that the insurers had entered an unconditional appearance established jurisdiction for the purposes of Article 66. The English court therefore had to yield jurisdiction under Article 27 and, in any event, was required to stay the proceedings under Article 28. The public-policy objection based on contempt could not displace those obligations.
5. Final result. The declaration action was stayed or struck out. The application to revoke the anti-suit injunction was refused. Accession had not produced a sufficiently fundamental change because the assured could still commence substantive proceedings in England in accordance with the exclusive jurisdiction clause.

The judgment records that the Cypriot appeal against Judge Michaelidis’s decision remained pending. The judgment was prepared on the assumption that the decision would be upheld; if reversed, the English court’s jurisdiction would require reconsideration.