Hamilton-Smith & Anor v CMS Cameron McKenna LLP

An English exclusive jurisdiction clause in a solicitor’s retainer ordinarily requires the English court to restrain proceedings brought elsewhere in breach of the bargain. At the interim stage, the applicant must show to a high degree of probability that the clause covers the claim. Such a clause may extend to closely connected professional-negligence claims in tort as well as contract claims. The court should ordinarily grant an injunction unless strong reasons are shown. Parallel proceedings and inconsistent decisions may be insufficient where a single forum cannot be secured and the disadvantages arise from the contractual choice of forum. Related English proceedings may nevertheless be stayed on conventional case-management grounds.

The claimants, English insolvency practitioners, were sued in Antigua by the liquidators of an Antiguan bank concerning their conduct as receiver-managers and liquidators. They had retained the defendant, an English firm of solicitors, and later brought parallel indemnity and professional-negligence claims against it in Antigua and England.

The defendant sought an anti-suit injunction, relying on an exclusive English jurisdiction clause in its general terms of business. The claimants argued that the clause did not cover work undertaken after their appointment as liquidators and that the Antiguan proceedings should continue because the underlying litigation, evidence and legal issues were substantially Antiguan. The central issues were whether the clause covered the claims and whether those circumstances constituted strong reasons to refuse relief.

1. Anti-suit injunction granted. The court was satisfied to the requisite high degree of probability that all claims against the defendant in the Antiguan proceedings fell within the exclusive jurisdiction clause. Their continuation would therefore very probably constitute a continuing breach of contract.
2. The words “any dispute arising out of or in connection with the retainer” were apt to cover tort claims concerning the provision of professional services under the retainer. Contractual and tortious professional-negligence claims were closely connected, and fine linguistic distinctions should be avoided.
3. The written retainer was probably limited initially to the claimants’ work as receiver-managers. It was nevertheless highly probable that the general terms applied to subsequent work undertaken for the same individual clients after their appointment as liquidators, whether that work was a variation of the original retainer or a new matter.
4. The claimants did not establish strong reasons to refuse relief. The underlying dispute was substantially Antiguan, and separate proceedings could create duplication and inconsistent findings. But the court could not ensure that every related dispute would be heard in one forum, particularly because the defendant might need to pursue contribution proceedings against Canadian lawyers in England. The defendant’s contractual interest therefore outweighed the claimants’ interest in litigating in Antigua.
5. The defendant’s participation in Antiguan remuneration proceedings and consent to an order concerning its fees did not amount to submission to the Antiguan jurisdiction for the later dispute. The English proceedings were stayed on conventional case-management grounds, with the duration and consequential matters to be determined on further submissions.