SAS Institute Inc v World Programming Ltd

A foreign court’s personal jurisdiction over a judgment debtor does not permit enforcement against assets situated in another state. The court must consider the asset’s situs, whether the proposed order is exorbitant, and its effects on third parties.

An anti-suit injunction may protect the English court’s territorial enforcement jurisdiction where foreign enforcement measures would affect assets situated in England. Comity requires restraint, but it also requires mutual respect for territorial limits. There is no separate requirement that an anti-enforcement injunction be exceptional, although such relief will rarely be justified.

Submission to a foreign court permits normal enforcement there. It does not amount to submission to exorbitant enforcement measures affecting English assets.

SAS Institute Inc obtained a substantial United States judgment against World Programming Ltd (“WPL”). The English court had finally refused recognition and enforcement of that judgment, including on public-policy grounds.

SAS then sought Californian assignment and turnover orders. The proposed orders would affect some receivables and bank funds situated in England, although they would operate formally in personam against WPL. Robin Knowles J had granted an interim anti-suit injunction. Cockerill J declined to continue it in SAS Institute Inc v World Programming Ltd [2019] EWHC 2481 (Comm).

WPL appealed. The central question was whether, and to what extent, an English anti-suit injunction should restrain SAS from seeking United States enforcement orders affecting assets situated in England.

1. Appeal allowed in part. The wide interim injunction was discharged, but the court granted narrower anti-suit relief to protect assets situated in England.

2. Enforcement of a judgment is territorial. A court may have personal jurisdiction over the debtor, but lack subject-matter jurisdiction to enforce against property situated elsewhere. The formal character of an order as in personam does not prevent it from being exorbitant if, in substance, it compels action in England, affects title to English-situated debts, or exposes third parties to uncertainty. That follows from Société Eram Shipping Co Ltd v Cie Internationale de Navigation [2003] UKHL 30.

3. The English enforcement judgment was not merely procedural. It finally established between these parties that the North Carolina judgment would not be recognised or enforced in England. Accordingly, United States enforcement against debts and bank funds situated in England would intrude upon the English court’s territorial enforcement jurisdiction.

4. An anti-suit injunction is available where the ends of justice require it. The jurisdiction is flexible, but comity requires a sufficient English interest. Protection of the English court’s own territorial jurisdiction supplied that interest here. There is no distinct rule that anti-enforcement relief is available only in an exceptional case; its rarity reflects the demanding general conditions for anti-suit relief.

5. WPL’s submission to the North Carolina proceedings prevented it from challenging ordinary United States enforcement against United States assets. It did not submit WPL to exorbitant measures directed at English assets. Delay and submission were discretionary factors, not bars to a suitably limited injunction.

6. No injunction should restrain enforcement against debts due from United States customers, since those debts were situated in the United States. SAS’s undertaking to give 14 days’ notice before seeking an order over debts due from United Kingdom customers gave sufficient protection. Injunctions were granted against an assignment order over specified third-country customer debts situated in England and against a turnover order over WPL’s United Kingdom bank funds and equivalent English-situated receivables.

7. The court also accepted SAS’s undertaking to give notice before seeking further relief that would prevent enforcement of WPL’s counterclaim under section 6 of the Protection of Trading Interests Act 1980.

• Court of Appeal (Civil Division): Allowed WPL’s appeal in part and replaced the broad interim restraint with limited relief: [2020] EWCA Civ 599.
• High Court, Commercial Court: Cockerill J declined to continue the anti-suit injunction, while permitting an appeal and continuing it pending appeal: [2019] EWHC 2481 (Comm).
• High Court, Commercial Court: In the related enforcement proceedings, Cockerill J refused recognition and enforcement in England of the North Carolina judgment: [2018] EWHC 3452 (Comm).