Koninklijke Philips N.V. v Guangdong Oppo Mobile Telecommunications Corp, Ltd & Ors.

An anti-suit injunction sought quia timet requires a strong probability of threatened infringement and a risk of harm so grave and irreparable that immediate relief and damages would be inadequate. The assessment is multifactorial. Parallel proceedings alone are not vexatious or oppressive, and comity requires restraint. Relief should not restrain enforcement of a foreign final judgment or legitimate foreign rate-setting proceedings. An order may be confined to the jurisdiction presenting the real threat. On an ex parte application, material non-disclosure usually discharges the order, but the duty concerns crucial matters rather than every detail.

Philips sought continuation of an ex parte anti-suit injunction against companies involved in an international standard-essential patent and FRAND dispute. The underlying proceedings concerned alleged infringement of UK patents declared essential to 3G or 4G standards. Mellor J granted interim relief on 4 May 2022, and Falk J continued it pending this inter partes hearing.

The defendants disputed the existence of any sufficiently imminent threat of Chinese anti-suit relief, alleged inadequate full and frank disclosure, challenged the worldwide scope and the word “interfere”, and offered contractual undertakings. The central issues were whether relief should continue, its proper territorial and substantive scope, and whether undertakings should be accepted instead of an injunction.

Application granted in part. Meade J continued anti-suit relief, but limited it to applications for relief from courts of the People's Republic of China and removed the word “interfere”.

1. Applicable principles. Parallel proceedings are not objectionable per se. Comity requires restraint, and anti-suit injunctions are not a default remedy. The court will be especially cautious about restraining enforcement of a foreign decision. The court applied the principles in Glencore v Metro Trading International Inc (No 3) [2002] 2 All ER (Comm) 1, Airbus v Patel [1999] 1 AC 119, South Carolina v Assurantie NV [1986] 1 AC 265 and ED & F Man v Haryanto (No. 2) [1991] 1 Lloyd's Rep. 161.
2. Quia timet relief. The court must ask whether there is a strong probability that the defendant will breach the claimant's rights unless restrained and, if so, whether the resulting harm would be so grave and irreparable that an immediate injunction after infringement and damages would be inadequate. The inquiry is multifactorial. Likelihood is highly significant, but it is not the only consideration. Relevant matters include the defendant's statements and conduct, prior acts, preventive steps by the claimant, timing, gravity of harm, and the mandatory or prohibitory nature of the relief. The court adopted the approach in Vastint v Persons Unknown [2018] EWHC 2456 (Ch), including the principles discussed in Islington London Borough Council v Elliott [2012] EWCA Civ 56 and Lloyd v Symonds [1998] EWCA Civ 511.
3. Application to the evidence. The previous Chinese anti-suit injunction in Sharp v OPPO, public statements concerning that litigation, the carefully worded evidence, and the defendants' seven-day reservation created a sufficiently imminent risk of further Chinese anti-suit relief. The evidence did not establish a comparable threat elsewhere. Such relief would be vexatious, oppressive and unconscionable because it could prevent the English court determining infringement of a UK patent.
4. Scope and comity. The word “interfere” was not inherently ambiguous, but it was inappropriate in this order because it could catch legitimate procedural steps in Chinese rate-setting proceedings. Enforcement of a final Chinese rate-setting judgment was neither imminent nor properly restrained. The order therefore did not prevent Chinese global rate-setting or enforcement of any eventual Chinese judgment. This respected the distinction explained in Unwired Planet [2020] UKSC 37.
5. Disclosure and undertakings. There was no material breach of full and frank disclosure. The relevant principles were taken from CEF Holdings v Mundey [2012] EWHC 1524. Contractual undertakings were inappropriate because enforcement would require separate contractual proceedings. The court was willing to accept undertakings to the court without prejudicing the defendants' jurisdiction challenge. Permission to appeal was refused, and there was no order as to costs under CPR Part 44.

Mellor J granted an ex parte anti-suit injunction on 4 May 2022. Falk J continued it pending the inter partes hearing. Meade J continued relief in modified terms.