Albon (t/a NA Carriage Co) v Naza Motor Trading Sdn Bhd & Anor (No 4)

An anti-suit injunction relating to a contract governed by English law is a claim made in respect of that contract for the purposes of the jurisdictional gateway in CPR 6.20(5). The court may also protect its processes while determining an extant application for a stay, including by restraining foreign proceedings which are unconscionable and imperil the just determination of that application.

Where foreign arbitration would duplicate English proceedings concerning the same subject matter, and the authenticity of the arbitration agreement remains unresolved by the English court, it may be oppressive to permit the arbitration to continue even on an interim basis. Any injunction remains subject to appropriate security for the applicant’s cross-undertaking in damages.

The claimant sought a fresh anti-arbitration and anti-suit injunction against the defendants. The defendants relied on a Malaysian joint venture agreement containing a Malaysian arbitration clause. The claimant alleged that the agreement and his signature were forged.

The court had previously held that the authenticity issue should be tried in England in the context of the defendants’ application for a stay under section 9(3) of the Arbitration Act 1996. A previous injunction had been discharged because the claimant failed to comply with a condition requiring payment to HM Revenue and Customs. The central issues were whether the court had jurisdiction to grant a fresh injunction and, if so, whether it should restrain the arbitration altogether or only prevent the arbitrators from deciding authenticity.

1. The court had jurisdiction to grant the injunction. A claim for an anti-suit injunction connected with a contract governed by English law falls within CPR 6.20(5). The phrase “in respect of” requires only that the claim relate to or be connected with the contract. The reasoning in Youell v Kara Mara Shipping supported that conclusion.
2. CPR 62.2 did not apply. That provision concerns arbitration claims under the Arbitration Act 1996 and extensions of that Act, together with claims under the common-law jurisdiction preserved by section 72. It did not govern a claim concerning a foreign arbitration of the present kind.
3. Alternatively, the court possessed an inherent power to protect its processes while the defendants’ stay application remained pending. That power included restraining steps within or outside the jurisdiction which were unconscionable and might imperil the just and effective determination of the stay application. The court considered Glencore International v Exeter Shipping Co and Grupo Torras v Sheikh Fahad.
4. It was oppressive and unconscionable for the defendants to prosecute, or allow the arbitrators to proceed with, an arbitration covering the same subject matter while the English court determined whether the arbitration agreement was authentic. The limited possibility of interim arbitral steps did not justify leaving that course open. The relevant considerations included the defendants’ refusal to give unconditional protection, the claimant’s exposure to duplicative and enormous costs, and the short expected period before determination of authenticity. The court applied Tonicstar v Atta and compared Elektrim SA v Vivendi.
5. Permission to serve the amended claim out of the jurisdiction was granted despite the earlier failure to seek it, because there was no sufficient reason to refuse permission and the alternative basis for relief required no gateway. The injunction would be granted until further order, conditional on security being provided for the claimant’s cross-undertaking in damages.

The judgment is a first-instance decision on an application for a fresh anti-arbitration and anti-suit injunction. It records earlier interlocutory judgments in the same action, including a judgment reported at [2007] 2 All ER 1075, but no appeal to the present court.