Eva-Maria Bucher-Haefner v Max Lewinsohn & Anor.

An anti-suit injunction may be granted in personam under section 37 of the Senior Courts Act 1981 where foreign proceedings are oppressive, unconscionable or an abuse of the English court’s process. The jurisdiction is concerned with preventing injustice to a party subject to the court’s jurisdiction, rather than controlling the foreign court.

A party who elects to have proceedings dismissed to secure finality because a fair trial is no longer possible may be restrained from bringing the same claim abroad. This can amount to an abuse of process even where the earlier dismissal was procedural and did not determine the merits. Contractual choice of foreign law or jurisdiction, and international comity, do not prevent relief where the foreign proceedings seek to circumvent that election.

The claimant sought an anti-suit injunction restraining proceedings brought by the defendants in Utah. The Utah complaint sought contractual recovery of costs and expenses under an Intercreditor Agreement, including costs connected with earlier English and Utah proceedings.

The defendants had previously brought a counterclaim in England seeking substantially the same relief. The English claim and counterclaim were dismissed by agreement because delay meant that a fair trial was no longer possible. The Deputy Master made no order as to costs, subject to later costs orders, without determining the contractual merits. The central issue was whether recommencing the same claims in Utah was oppressive, unconscionable or an abuse of the English court’s process, having regard to comity and the contractual Utah jurisdiction provisions.

1. Relief granted. An anti-suit injunction was granted restraining the defendants from pursuing in Utah the claims corresponding to the dismissed English counterclaim.
2. The court exercised its in person jurisdiction under section 37 of the Senior Courts Act 1981. The question was whether the defendants’ conduct made it appropriate to restrain them, not whether the English court should exercise jurisdiction over the Utah court.
3. The defendants had elected to seek dismissal of their counterclaim, representing that they wanted certainty and finality because a fair trial was no longer possible. That election led to dismissal of the counterclaim and induced the claimant to accept the same outcome. Starting equivalent proceedings in England would therefore have been an abuse of process: the defendants would be taking a position contrary to the one that procured dismissal and would be acting inconsistently with the public interest in finality in litigation.
4. The same conclusion applied to the Utah complaint because it mirrored the relief sought in the counterclaim. The fact that the English dismissal was not on the merits did not prevent an abuse-of-process finding. The court applied a broad, merits-based assessment of unconscionable conduct and considered that the rule in Henderson v Henderson (1843) 3 Hare 100 could apply to matters which should have been raised in the earlier proceedings.
5. The foreign-law and exclusive-jurisdiction provisions did not alter the result. Nor did international comity. The injunction was directed at preventing the defendants’ unconscionable conduct and protecting the integrity of the English proceedings, rather than determining or enforcing the Utah court’s decision.
6. It was unnecessary to separate the contractual claim for costs incurred in Utah and England from the indemnity claim concerning liabilities arising from the English proceedings. Both forms of relief fell within the dismissed counterclaim and were covered by the injunction.