Khalifeh v Blom Bank S.A.L.

An application for an anti-suit injunction may be dealt with as an interim application, including where the relief sought is mandatory and would require foreign proceedings to be withdrawn.

At that stage, the court should assess the least risk of injustice. A mandatory order generally requires a high degree of assurance that the claimant will succeed, unless exceptional circumstances justify relief. Undertakings may adequately protect the claimant while preserving a potentially legitimate foreign-law defence. Where material questions of foreign law remain unresolved, the court may adjourn the mandatory application to an expedited trial with liberty to apply.

The claimant, a consumer banking customer, sought an anti-suit injunction under section 37 of the Senior Courts Act 1981. He sought to restrain the defendant Lebanese bank from prosecuting proceedings in Lebanon connected with an alleged tender and deposit of a banker’s cheque.

The claimant relied on Article 18(2) of Brussels Recast and on the alleged vexatious or oppressive nature of the Lebanese proceedings. The defendant offered undertakings not to take further steps in Lebanon or commence parallel proceedings, but resisted withdrawing the proceedings because it contended that their continued existence was necessary to preserve a defence in the English claim.

The central issue was whether a mandatory anti-suit injunction should be granted immediately or whether the application should await trial and determination of the disputed Lebanese-law evidence.

1. Nature of the application. The relief sought was an interlocutory mandatory anti-suit injunction because it would require the defendant to withdraw proceedings already commenced in Lebanon. The court could instead adjourn the mandatory application while granting interim protection through undertakings.
2. Applicable approach. The relevant benchmark was the least risk of injustice. Greater caution was required for mandatory relief because an interim order might irreversibly deprive the defendant of a defence which it might establish at trial. A high degree of assurance of success was ordinarily required, although exceptional cases could justify relief on the basis that it involved the least risk of injustice.
3. Brussels Recast. The Court of Appeal decisions in Samengo-Turner v J & H Marsh [2007] 2 All ER (Comm) 813 and Petter v EMC Europe Ltd [2015] CP Rep 47 appeared binding. They did not compel an anti-suit injunction in every case. The interests of justice remained fact-sensitive, particularly where the foreign proceedings might be necessary to preserve a defence in the English proceedings.
4. Evidence and balance. The evidence did not permit the court to rule out a real risk that withdrawing the Lebanese proceedings would prevent the defendant from relying on its tender and deposit defence. The competing expert opinions on Lebanese law required determination at trial. The defendant’s undertakings substantially reduced the risk that the claimant would face parallel substantive litigation or that an English judgment would be frustrated.
5. Disposition. The mandatory injunction was not granted at that stage. The application was adjourned to an expedited trial, with liberty to apply for earlier restoration. The defendant’s undertakings were maintained and extended, including undertakings not to take further steps in the Lebanese proceedings, not to prosecute parallel proceedings, and not to contend that the tender had been accepted through failure to reject it. The defendant was also required to provide information concerning the Lebanese proceedings.

• High Court (Queen’s Bench Division): Master Davison decided an earlier summary judgment and jurisdictional challenge application in [2020] EWHC 2427 (QB). The defendant accepted the English court’s jurisdiction. In the present judgment, the mandatory anti-suit injunction application was adjourned to an expedited trial.