A v OOO 'Insurance Company Chubb' & Ors

Urgency alone does not justify determining an application ex parte where the matter can fairly be heard inter partes on short notice. The court will not grant mandatory relief with potentially final and far-reaching consequences unless the merits have been fully and properly ventilated. A party seeking urgent relief must provide a clear identification of the issues and applicable tests, properly prepared evidence, compliant written submissions and sufficient time for fair determination. Where delay, incomplete disclosure and inadequate preparation make a fair hearing impossible, the court may decline to proceed and give directions for a further hearing.

The claimant sought urgent anti-suit relief against four defendants concerning Russian proceedings allegedly brought in breach of an arbitration agreement providing for London-seated ICC arbitration. The application included mandatory relief requiring the Russian claimant to seek a stay or withdraw its claims, together with associated relief against other group companies.

The application was listed urgently before the Russian court was due to consider the claimant’s stay motion. The court was faced with very late evidence, an incomplete authorities bundle, a late and non-compliant skeleton argument, substantial unresolved issues concerning governing law and the proposed relief, and inadequate preparation for a one-day hearing. The central question was whether the court should proceed to determine the urgent injunctive application on that basis.

1. The application was not determined on its merits. The court declined to proceed substantively with the urgent anti-suit application on 15 October 2019 because the case was not ready for a fair hearing.
2. Urgency did not explain why the application had been issued ex parte rather than inter partes on short notice. The claimant had known of the threatened Russian proceedings since May 2019, and the resulting time pressure was substantially of its own making.
3. No compelling prejudice requiring determination before the Russian court considered the stay motion had been identified. The possibility that the Russian proceedings might progress did not, without more, justify proceeding on an inadequately prepared basis.
4. The court placed particular weight on the failure of full and frank disclosure when earlier directions were sought. Material concerning the contractual governing law and the claimant’s own Russian stay application had not been placed before the court at that stage.
5. The relief sought was at least arguably final in effect. A mandatory order requiring withdrawal or waiver of claims could have permanent and far-reaching consequences. Such relief would not be granted lightly or without the merits being fully and properly ventilated.
6. The late evidence, incomplete material, unresolved Russian-law issues, uncertainty about the applicable legal test, and failure to comply with the Commercial Court Guide meant that one day was insufficient for a fair determination. Properly focused written submissions and further preparation should enable the matter to be disposed of at a later hearing.

The court therefore refused to let the substantive application proceed further that day. Further directions were contemplated for a properly prepared hearing.