ICBCL Financial Leasing v CG Commercial Finance

On an interim application for an anti-suit injunction, the court may continue existing relief where there is at least a good arguable case that a jurisdiction clause confers exclusive jurisdiction. The injunction may also extend to unidentified individual defendants where they are sued for acts performed as officers or employees and there is no apparent independent claim against them. Such proceedings may be vexatious and oppressive, or the individuals may be entitled to rely on the jurisdiction clause. Alternative service should be ordered only where necessary. The court may refuse it where the defendant is aware of the documents and the return hearing can proceed through ordinary or Hague Convention service.

The claimant sought continuation and extension of an interim anti-suit injunction previously granted against the defendant’s pursuit of proceedings in California. The defendant was not represented at the hearing, although its New York lawyers had requested time to appoint English lawyers and file evidence.

The principal issue was whether the parties’ jurisdiction clause provided for exclusive, rather than non-exclusive, English jurisdiction. The claimant also sought protection for unidentified defendants in the California proceedings, described as individuals who had acted as its agents, and an order permitting alternative service through the defendant’s solicitors.

1. Continuation of injunction. The matter was adjourned to the first available date after 1 October, and the interim anti-suit injunction was continued pending fuller determination. There was at least a good arguable case that the jurisdiction clause, properly construed, conferred exclusive English jurisdiction.
2. Unidentified individual defendants. The injunction was extended to the unidentified “Does”. The complaint did not disclose any independent claim against them apart from acts allegedly performed as officers or employees of the claimant. There was therefore a good arguable case either that they could take the benefit of the jurisdiction clause or that proceedings against them for acts done in that capacity were vexatious and oppressive.
3. Alternative service. The application to serve the claim form and other documents at the London office of Covington and Burling was refused. The court applied the considerations discussed in Deutsche Bank v Sebastian Holdings Inc. [2014] EWHC 112 (Comm). Alternative service was unnecessary because the defendant was clearly aware of the relevant documents, was expected to appoint English lawyers, and service under the Hague Convention would not ordinarily prevent the return hearing from proceeding.
4. The hearing was to be fixed during the following week, with at least 24 hours’ notice to Covington and Burling of the date and time.