Cook UK Limited v Boston Scientific Limited & Anor.

An anti-suit injunction requires caution because it interferes with the process or potential process of a foreign court. The applicant must establish a sufficiently strong case, including that the foreign proceedings are vexatious or oppressive where both forums are available, and the court must give substantial weight to comity. Parallel proceedings are not necessarily vexatious or oppressive. On an urgent application, the court should give whatever notice is practicable if doing so does not defeat the application’s purpose. In an exceptional Hague Convention case, alternative service may be ordered where necessary to make the return hearing effective.

Cook intended to bring United Kingdom proceedings concerning infringement and revocation of a European patent covering a medical device. The Boston companies had commenced interim kort geding proceedings in the Netherlands concerning the United Kingdom, French and Irish designations.

Cook applied without notice for interim anti-suit relief pending a substantive hearing, together with directions for service on Boston Scientific Medical Device Limited, an Irish company. The central issues were whether Cook had an arguable basis for later anti-suit relief, what interim protection was justified, whether Boston Ireland was a proper party under gateway (3), and whether alternative service was appropriate.

1. Interim anti-suit relief. Cook’s intended application was at least arguable, including because there was an arguable infringement-validity squeeze which the Dutch interim proceedings could not finally resolve. The grant of a substantive anti-suit injunction remained highly uncertain and would require careful consideration after hearing Boston.
2. Applicable principles. The principles summarised in Deutsche Bank v Highland Crusader Offshore Partners [2009] EWCA Civ 725 applied. The court could restrain proceedings in a foreign court where necessary in the interests of justice, but normally required vexation or oppression where both courts could determine the matter. England had to be the natural forum and justice had to require restraint. Comity was a powerful limiting consideration, particularly where the application was not based on an exclusive jurisdiction agreement. Different legal systems could legitimately adopt different procedures, and parallel proceedings were not necessarily vexatious or oppressive.
3. Limited interim order. The court declined to grant an injunction actively restraining proceedings in the Netherlands. Instead, both Boston companies were required to give Cook at least 72 hours’ notice of any application in the Netherlands to restrain or interfere with the intended United Kingdom proceedings or Cook’s anti-suit application. That order preserved the possibility of an urgent application in England while causing minimal, probably nil, interference with the Dutch proceedings.
4. Service on Boston Ireland. By a narrow margin, Boston Ireland was treated as a proper party under gateway (3), because it appeared to maintain an interest in Dutch proceedings involving the United Kingdom patent. The position could change if its role was clarified. Alternative service was permitted through Marks & Clerk. Although unusual in a Hague Convention case, the need to ensure an effective and unproblematic return hearing justified the order, consistently with the approach in Griffin Underwriting Limited v Varouxakis [2021] EWHC 226 (Comm) and Corporate Capital UK II Limited v ABSA Group Limited [2021] EWHC 225 (Comm).

First-instance ex parte application in an intended patent action. The court granted limited interim protective relief, directed alternative service on Boston Ireland, and listed the substantive anti-suit application for a later hearing.