Axis Corporate Capital UK Ltd & Ors v Absa Group Ltd & Ors

Where a party has established a high degree of probability that foreign proceedings breach a binding exclusive jurisdiction agreement, the court will ordinarily grant an anti-suit injunction unless strong reasons justify refusal. Forum convenience is generally irrelevant in contractual cases because it is taken to have been addressed by the parties’ bargain. Comity has little role beyond delay and the stage reached in the foreign proceedings. Even without an exclusive jurisdiction agreement, relief may be granted where the foreign proceedings are vexatious, oppressive or unconscionable, England is the natural forum, and an injunction is in the interests of justice.

The reinsurers sought an interim anti-suit injunction restraining proceedings brought by the defendants in South Africa concerning indemnity under reinsurance contracts. They also sought permission, if required, to serve proceedings out of the jurisdiction and permission for alternative service. The reinsurance contracts were governed by English law and contained differing jurisdiction clauses. The court considered whether those clauses conferred exclusive English jurisdiction and, alternatively, whether the South African proceedings should be restrained on forum and justice-based grounds.

1. Interim anti-suit injunction granted. The claimants established to a high degree of probability that each reinsurance contract contained a binding and applicable exclusive jurisdiction agreement in favour of England and Wales. Under section 37(1) of the Senior Courts Act 1981, the court therefore ordinarily had to restrain proceedings brought in breach of that bargain unless the defendants demonstrated strong reasons to refuse relief.
2. The aggregate retention reinsurance contained clear wording requiring disputes to be referred to the courts of England and Wales. The excess reinsurance also conferred exclusive English jurisdiction. The positive language of the clause, the requirement to comply with all requirements necessary to give the court jurisdiction, the choice of English law and the contrast with the separate worldwide clause supported that construction.
3. The primary reinsurance clauses were construed in the context of the entire reinsurance tower. Where a claim affected the excess or aggregate retention layers as well as the primary layer, the parties’ objective intention was that disputes should be determined in the same exclusive English forum. The defendants could not assert contractual or third-party rights under the reinsurance contracts while avoiding their jurisdiction clauses.
4. No strong reason displaced the contractual bargain. Forum conveniens considerations were irrelevant. Comity had little, if any, role because the application was made promptly, before the South African proceedings had materially advanced. Fragmentation, duplicated costs and the risk of inconsistent judgments reinforced the case for relief.
5. Alternatively, if the primary reinsurances did not contain exclusive jurisdiction clauses, the South African proceedings were vexatious, oppressive or unconscionable, England was clearly the natural forum, and relief was in the interests of justice. The court also concluded that damages would not be an adequate remedy.
6. Permission to serve out was unnecessary because the contracts contained exclusive English jurisdiction clauses; it would have been granted under the relevant Civil Procedure Rules in any event. Alternative service on the defendants by delivery, leaving documents with their solicitors and email was authorised because formal service in South Africa could take up to 12 months and prompt constitution of the proceedings was important.

First-instance decision. No appellate history is stated in the judgment.