Navig8 PTE Ltd v Al-Riyadh Co for Vegetable Oil Industry

Permission to serve proceedings out of the jurisdiction depends on satisfying the applicable gateway, showing reasonable prospects of success, establishing that England and Wales is the proper forum, and obtaining permission as a matter of discretion.

An anti-suit injunction to restrain foreign proceedings is ordinarily available only where the foreign conduct is unconscionable, unless it protects a contractual jurisdiction or arbitration agreement. A choice of English law is an important forum factor, especially where material differences exist between English and foreign law, but it is not conclusive. Negative declaratory relief may be served out only where a solid practical benefit will ensue. Such a benefit may include assisting resistance to enforcement of a foreign judgment or supporting consequential relief.

Navig8, a Singaporean company, sought relief against Al-Riyadh, a Jordanian company, concerning Jordanian proceedings arising from allegedly damaged palm oil cargo. Al-Riyadh had sued Navig8 in Jordan, asserting that Navig8 were carriers under bills of lading. Navig8 sought an anti-suit injunction, damages and negative declarations concerning its status and liability.

Hamblen J had permitted service out of the jurisdiction but refused an anti-suit injunction. Al-Riyadh challenged the jurisdiction of the English court. The central issues were whether the injunction and damages claims fell within an applicable jurisdictional gateway, whether the foreign proceedings were unconscionable, whether England was the proper forum for the declaration claims, and whether those declarations would provide a solid practical benefit.

1. The application succeeded in relation to the injunction claim as originally presented. The claim was not within paragraph 3.1(6)(c) of Practice Direction 6B because it asserted no contractual right and no right arising from non-performance of a contract. The claim for equitable damages under section 50 of the Senior Courts Act 1981 therefore also lacked a proper jurisdictional basis.

2. Applying Star Reefers Pool Inc v JFC Group Ltd [2012] EWCA Civ 14, an anti-suit injunction, outside cases involving breach of a jurisdiction or arbitration agreement, requires unconscionable conduct. The Jordanian proceedings were brought before the English proceedings, were relatively advanced, and had a real prospect of success under Jordanian law. They were not shown to be vexatious or oppressive.

3. The later argument based on the exclusion provision and the Contracts (Rights of Third Parties) Act 1999 also failed. The Act did not confer a right comparable to that protected in West Tankers Inc v Ras Riunione Adriatica di Sicurta (The “Front Comor”) [2005] EWHC 454 (Comm). Nor did Al-Riyadh owe Navig8 a duty not to pursue proceedings governed by Jordanian private international law.

4. The declaration claims were materially different. Although no person connected with the dispute was English, the parties to the putative contracts had chosen English law and there were relevant differences between English and Jordanian law. Following the approach explained in VTB Capital plc v Nutritek International Corp [2012] EWCA Civ 808, this was a powerful factor supporting England as the natural and appropriate forum.

5. The court retained discretion to permit service of negative declarations only where a solid practical benefit would ensue. That threshold was met because the declarations might assist Navig8 in resisting enforcement of a Jordanian judgment in a third country and might support ancillary anti-suit relief. The court therefore concluded that permission should be available for the declaration claims, while inviting submissions on the appropriate orders in light of the original permission having been confined to the injunction claim.