LAMIA CORPORATION SRL & OTHERS v TOKIO MARINE KILN SYNDICATES LIMITED & OTHERS

An anti-suit injunction may be granted on a quasi-contractual basis where a foreign claimant seeks to enforce obligations derived from a contract containing an exclusive English jurisdiction clause. The claimant need not be a party to that contract. The court must determine whether the foreign claim is contractual in substance or derives from contractual obligations. Delay remains significant, and promptness is assessed together with the progress of the foreign proceedings. Relief based only on vexation or oppression requires England to be clearly the natural forum and the foreign proceedings to be vexatious or oppressive, subject to comity.

These conjoined Commercial Court applications concerned interlocutory anti-suit injunctions sought by Aon UK Limited and London reinsurers against 43 survivors and personal representatives of victims of the 2016 LaMia aircraft accident.

The Individuals proposed claims in Florida against Aon for negligent procurement of insurance and against the Reinsurers for bad-faith failure to defend. The English proceedings concerned the insurance and reinsurance arrangements, Aon’s terms of business, and a deed of release governed by English law and subject to exclusive English jurisdiction.

The central issues were whether the claims were derived from contractual obligations so as to engage the jurisdiction clauses, and, for the Reinsurers, whether England was clearly the most appropriate forum and the Florida proceedings were vexatious or oppressive.

1. Aon injunction continued. The TOBA was agreed between Aon and LaMia to a high degree of probability. Its broad terms applied to the relevant insurance-broking services, and clause 21 covered claims arising out of or connected with those services. The Individuals’ proposed Florida claim was, on the Florida-law evidence, derived from obligations owed by Aon to LaMia. It was therefore quasi-contractual, although pleaded as negligence and brought by non-parties. No strong reason existed to refuse relief.
2. The court applied the high degree of probability standard to disputed issues of Florida law, followed by an English-law analysis of the claim’s substance. Contractual terms could restrict or condition a concurrent tortious duty where that duty arose from obligations governed by the contract. The derived claim was therefore subject to an equitable obligation not to sue in breach of the exclusive jurisdiction clause.
3. Aon’s delay was not prompt, but the Florida proceedings had not materially advanced against Aon. The delay was excusable, and enforcement of the jurisdiction agreement outweighed the delay.
4. Reinsurers’ injunction discharged. England was not clearly the most appropriate forum. The claim existed under Florida law and substantially concerned events within the Florida proceedings. The deed of release and the English proceedings were relevant but did not make England the natural forum.
5. The claims were not vexatious or oppressive in the relevant sense. The Florida experts agreed that the Reinsurers would have a fair opportunity to be heard and that the claim was not frivolous or vexatious under Florida law. Comity therefore required the English court to refrain from preventing the Florida court from adjudicating the claim. The Reinsurers’ delay would independently have been a very material factor against relief.

The Aon injunction was continued. The Reinsurers’ injunction was discharged.

First-instance decision. The judgment records earlier without-notice injunctions granted by Henshaw J and Foxton J, but determines the return-date applications itself.