Masri v Consolidated Contractors International Company Sal & Anor

Where a party is properly subject to the English court’s in personam jurisdiction in existing substantive proceedings, the court may grant a post-judgment anti-suit injunction as an ancillary order protecting its process and judgment. In an alternative-forum case, the application creates no separate cause of action or jurisdictional claim, and requires no separate jurisdictional gateway under the Brussels I Regulation or the Civil Procedure Rules.

The power remains discretionary and must be exercised consistently with international comity. Yet foreign re-litigation of matters decided in England, by a judgment debtor who submitted to the English proceedings, can be vexatious and oppressive and may justify restraint. The order is directed to the party, not the foreign court.

Mr Masri obtained Commercial Court judgments of about US$55 million against the two Lebanese judgment debtors after they had submitted to the English court’s jurisdiction and defended the claim on its merits. In April 2007 they began proceedings in Yemen seeking a declaration of non-liability in respect of matters determined in England.

HH Judge Mackie QC granted an injunction restraining proceedings outside England and European Union courts concerning the 1992 agreement and requiring discontinuance of the Yemeni proceedings. The debtors appealed. They contended that the injunction was a separate claim requiring an independent jurisdictional basis and that comity precluded restraint of foreign re-litigation. The central questions were the court’s post-judgment jurisdiction and the proper exercise of its discretion.

1. Appeal dismissed, subject to variation. The injunction was varied to exclude the remaining Lugano Convention states. It otherwise remained in force.

2. Lawrence Collins LJ, with whom Longmore LJ and Sir Anthony Clarke MR agreed, held that an anti-suit injunction in an alternative-forum case is ancillary to the substantive proceedings. It is not a new claim requiring a separate cause of action, amendment of the claim form, or an independent jurisdictional basis under the Brussels I Regulation or CPR 6.20. The judgment debtors’ general submission to the jurisdiction in the proceedings that produced the English judgments was sufficient.

3. The court which has jurisdiction over the substance of the dispute may make ancillary orders before and after judgment, including against a party domiciled in a Regulation state. That jurisdiction did not depend on the injunction being a provisional or protective measure under Article 31. In any event, the interim injunction protected the English proceedings and judgment and was capable of being characterised as protective.

4. The power is discretionary and comity requires caution because the order indirectly affects foreign proceedings. However, there was no rule preventing the English court from restraining foreign re-litigation of issues already resolved by its judgment. Protection of the court’s process, jurisdiction and judgments is a legitimate basis for relief. The Yemeni action was a classic case of vexatious and oppressive re-litigation by debtors seeking to evade an English judgment after a full trial.

5. The authorities concerning restraint of reliance on an existing foreign judgment, including ED & F Man (Sugar) Ltd v Haryanto (No 2) [1991] 1 Lloyd’s Rep. 429, did not govern. No foreign judgment had been given. The order contained the normal implied liberty to apply, and the judge was entitled to make it worldwide because the debtors would not disclose whether they intended further re-litigation elsewhere.

• Court of Appeal (Civil Division) — dismissed the judgment debtors’ appeal and varied the injunction only to exclude Lugano Convention states: [2008] EWCA Civ 625.
• High Court, Commercial Court — HH Judge Mackie QC, on 25 May 2007, restrained the judgment debtors from commencing or continuing foreign proceedings concerning matters determined in the English action and required discontinuance of the Yemeni proceedings.
• High Court, Commercial Court — Gloster J had determined liability in July 2006 and quantum in March 2007, giving Mr Masri judgment against the appellants.