Clearlake Shipping Pte Ltd & Anor v Xiang Da Marine Pte Ltd

Where an injunction must be served urgently and personal service is impracticable, alternative service may be authorised if there is a good reason in all the circumstances. The court should consider the serious consequences of non-compliance and the likelihood that the order will reach those affected.

Costs of an anti-suit injunction may properly be assessed on the indemnity basis where the foreign proceedings breach an exclusive jurisdiction clause or are vexatious and oppressive. Such conduct may be treated as out of the norm. Where substantial costs have been incurred over a two-day hearing, detailed assessment rather than summary assessment may be appropriate.

The judgment concerned consequential matters following the court’s earlier decision, [2019] EWHC 2284 (Comm), which granted Clearlake Shipping Pte Ltd and Gunvor Singapore Pte Ltd interim anti-suit injunctions restraining proceedings brought by Xiang Da Marine Pte Ltd in Singapore.

The court considered the precise form of the injunctions, applications for alternative service on Xiang Da and its directors, and the appropriate costs orders. Xiang Da did not provide submissions on those matters. The central issues were whether there was good reason for alternative service and whether the successful claimants’ costs should be assessed on the standard or indemnity basis.

1. Alternative service. The interim injunctions previously granted without notice continued until the new order took effect. The court authorised alternative service under the relevant provisions of the Civil Procedure Rules 1998. The essential question was whether, in all the circumstances, there was a good reason to authorise alternative service, having regard particularly to the serious consequences of failing to comply with an injunction. That was essentially a question of fact, applying Abela v Baadarani [2013] UKSC 44.
2. Alternative service was justified because an injunction should be served promptly; the directors’ whereabouts were unknown; personal service would cause unnecessary delay and expense; the former solicitors remained on the record; and there was a high likelihood that the order would be communicated to Xiang Da and its directors. Evidence also indicated that the proposed methods were lawful in Singapore.
3. Costs. Under the general rule in the Civil Procedure Rules 1998, the successful claimants were entitled to their costs. The court applied the approach in A v B (No 2) [2007] EWHC 54 (Comm) and National Westminster Bank Plc v Rabobank Nederland (No 3) [2007] EWHC 1742 (Comm). Costs of an anti-suit injunction based on breach of an exclusive jurisdiction clause should ordinarily be assessed on the indemnity basis because the breach caused the foreign costs which the clause was intended to prevent. The same reasoning applied by analogy where proceedings were vexatious or oppressive. Xiang Da’s conduct towards Gunvor was out of the norm.
4. Summary assessment was inappropriate because each costs claim substantially exceeded £100,000 and the hearing lasted two days. The costs were therefore to be subject to detailed assessment if not agreed.
5. There was no good reason to withhold an order for payment on account. Applying an appropriate 70 per cent figure to indemnity costs, Xiang Da was ordered to pay £258,865 to Clearlake and £150,000 to Gunvor within 14 days.