AXA Corporate Solutions Assurance SA v Weir Services Australia Pty Ltd

For service out of the jurisdiction, the claimant must show that England is clearly the most appropriate forum for trial in the interests of all parties and justice. In insurance disputes, the governing law and the place and market of underwriting may be powerful factors, particularly where standard London-market policies governed by English law are concerned. Negative declaratory relief may be appropriate where construction of an English-law policy is in issue.

An anti-suit injunction requires more than proof that the foreign court is not the natural forum or that parallel proceedings may produce inconsistent judgments. Without an English jurisdiction clause, the foreign proceedings must be unconscionable, vexatious or oppressive. Where local and global policies are interrelated, determination of the local policy may be logically anterior, justifying a stay of the English proceedings.

AXA sought declarations concerning coverage under global liability policies issued in England to companies in the Weir group. Weir, an Australian subsidiary, brought proceedings in New South Wales concerning indemnity under an Australian policy and, alternatively, the global policies.

AXA applied for an anti-suit injunction restraining Weir from pursuing its global-policy claim in Australia. Weir applied to set aside permission to serve the English proceedings out of the jurisdiction, arguing that New South Wales was the appropriate forum. The court also had to determine how the parallel proceedings should be managed.

1. Service out and forum. Applying Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 and VTB Capital plc v Nutritek International Corp [2013] 2 AC 337, AXA bore the burden of showing that England was clearly the most appropriate forum. The relevant factors included the governing law, the location of parties and witnesses, and parallel foreign proceedings.
2. The global policies were in effect governed by English law. They were written on the London market, issued by AXA’s English branch, and formed part of a worldwide master-policy programme. Those factors outweighed the attraction of resolving the entire dispute in New South Wales. England was therefore the clearly appropriate forum for the claim under the global policies, and service out was not set aside.
3. Negative declaratory relief was useful because the English court was asked to construe policies entered into in England and governed by English law: Tiernan v Magen Insurance Co Ltd [2000] I.L.Pr. 517, applying criteria from New Hampshire Insurance Co. v Philips Electronics North America [1999] 1 Lloyd's Rep. I.R. 58. The court declined to determine the merits of Weir’s Australian-policy claim on the interlocutory applications.
4. Anti-suit relief. In the absence of an English jurisdiction clause, the applicable threshold was unconscionable, vexatious or oppressive conduct: Seismic Shipping v Total E & P [2005] 2 Lloyd’s Rep 359 (CA). A foreign claim being brought outside the natural forum, or the risk of inconsistent judgments, was insufficient. Weir’s commencement of Australian proceedings was tactical but pursued a legitimate objective and did not meet the threshold. The injunction was refused.
5. Case management. Because the global policies responded only to the extent that indemnity was unavailable under the Australian policy, determination of the Australian policy was logically anterior. The English proceedings were stayed, formally or by undertakings, pending the Australian court’s consideration of the Australian claim. The position could later be reviewed if the global-policy claim remained relevant.