FW Aviation (Holdings) 1 Limited v VietJet Aviation Joint Stock Company

In considering relief to protect rights established by existing orders, the court must distinguish between prohibitory and mandatory relief. A prohibitory order restraining conduct contrary to an existing order is materially easier to justify than an order requiring positive steps to be taken. The court must also avoid prejudging pending contempt proceedings and should give appropriate, though not decisive, weight to comity where foreign proceedings are involved. Relief engaging freedom of expression must be framed narrowly and must not prevent a party from advancing its case or making accurate statements. An order will not be made where its practical utility is doubtful.

The claimant, assignee of rights under aircraft sub-leases, sought further relief against the defendant in connection with shareholder proceedings in Vietnam. The claimant alleged that those proceedings and related conduct were being used to interfere with its court-ordered right to possession, custody, control and export of four aircraft.

The application sought prohibitory orders restraining financial or evidential support for the Vietnamese proceedings, expressions of support for the shareholder claimants, and conduct said to undermine the claimant’s rights. It also sought mandatory relief requiring the defendant to ask the Vietnamese claimants to withdraw their claims, an order concerning inspections of the aircraft, and notice of any final hearing. The central issues were the scope and appropriateness of that relief, having regard to pending contempt proceedings, comity, human-rights considerations and utility.

1. Relief granted in part. Orders were made restraining the defendant from providing finance or documents in support of the Vietnamese shareholder proceedings, expressing support for the replacement shareholder claimants, and assisting with the proposed on-site inspections. The application for mandatory relief requiring the defendant to seek withdrawal of the Vietnamese claims was refused.
2. The court reaffirmed the important distinction between prohibitory and mandatory injunctions. Negative relief supported the claimant’s existing contractual and court-ordered rights. Positive relief would go materially beyond enforcing those rights and was more difficult to justify.
3. In assessing the prohibitory relief, the relevant question was whether the conduct, if undertaken, would run counter to the orders already made by the court. On that basis, the order restraining expressions of support for the replacement shareholder claimants was justified.
4. The court refused an order restraining the defendant from questioning the claimant’s rights. The order was not justified in the circumstances, particularly because contempt proceedings remained pending and the proposed relief would require the court to express views relevant to those proceedings. A further order preventing the defendant from adopting a contrary position in judicial or arbitral proceedings was too widely drafted and might inhibit the defendant’s right to present its case. A narrower form could be considered.
5. The mandatory order was refused because positive relief went beyond the existing prohibitory orders, could affect or interfere with proceedings that were matters for the Vietnamese courts, had doubtful utility given that the defendant had already written to one claimant without apparent result, and risked pre-empting the imminent trial and the pending contempt application.
6. The absence of documents from third-party custodians did not justify relief against the defendant. The principle in Phones4U Ltd (in administration) v EE Ltd and ors [2021] EWCA Civ 116 permitted an order requiring a party to request documents outside its control, but non-compliance by the third party did not itself justify relief against that party. Any inference at trial was a matter for the trial judge.