Tadros & Anor v Barratt & Ors

An anti-suit injunction restraining foreign proceedings is discretionary and must be granted cautiously. Concurrent proceedings do not, by themselves, establish vexation, oppression or abuse. The applicant must generally show that England is the natural forum and that justice requires restraint, including consideration of any legitimate juridical advantage lost by the restrained party. Comity is especially important where the foreign party is a separate legal person with a direct interest in the foreign dispute. The natural forum may differ between parties and between connected disputes. Where the foreign court is the proper forum for asset-protection measures, the English court should not duplicate them by granting a freezing order.

The claimants, brothers of the deceased, were litigating in England about the validity and effect of her English and Dutch wills. The second defendant was sole beneficiary under the English will and executrix under the Dutch will. The ninth defendant was a Dutch charitable foundation and alleged sole beneficiary under the Dutch will.

The second defendant and the foundation commenced Dutch proceedings concerning the Dutch will and the deceased’s estate. The claimants sought anti-suit relief and a freezing order over Dutch assets. The central issues were the natural forum, whether the Dutch proceedings were vexatious or oppressive, and whether comity or legitimate juridical advantages made restraint unjust.

1. Anti-suit injunction. The applications were refused against both the second defendant and the foundation. The court applied the principles in Société Nationale Industrielle Aerospatiale v Lee Kui Jak, [1987] 1 AC 871, Airbus Industrie GIE v Patel, [1999] 1 AC 119, and Turner v Grovit, [2002] 1 WLR 107.
2. The foundation was a separate Dutch legal person. It had no beneficial interest in the second defendant, and there was a clear conflict between them. It could not be treated as the second defendant’s creature.
3. England had become the natural forum for the combined dispute between the claimants and the second defendant because the English proceedings had begun first and were later extended to the Dutch will. The Netherlands was the natural forum for the dispute directly affecting the foundation, given the deceased’s nationality, the governing law of the Dutch will and the foundation’s direct interest in it.
4. Concurrent proceedings were procedurally unfortunate but did not automatically amount to vexation, oppression, unconscionability or abuse. The foundation’s proposed juridical advantages received limited weight. Comity and the Netherlands’ status as the natural forum nevertheless made restraint against the foundation unjustified.
5. Although there would otherwise have been a strong case for restraining the second defendant, the foundation could continue as a competent claimant in the Netherlands without her. An injunction against her alone would serve no practical purpose.
6. Freezing order. No freezing order was granted. Existing attachments and any future relief concerning the Dutch assets could be addressed by the Dutch courts, which were the proper forum.
7. The court declined to stay or give further case-management directions in the English proceedings without further submissions or agreement. Consequential matters were adjourned.