Augusta Energy SA v Top Oil and Gas Development Company Limited

An exclusive jurisdiction clause may support an anti-suit injunction where the court is satisfied, at the interlocutory stage, to a high degree of probability that the clause binds the defendant. Contractual terms incorporated through an agent may bind the principal where the agency and authority are sufficiently established. A late jurisdiction challenge may be barred by submission to the court’s jurisdiction. Alternatively, relief from sanction may be refused where the default is serious, the explanation is not a good reason, and promptness is particularly important in jurisdictional matters.

Augusta sought an interim anti-suit injunction restraining Top Oil from pursuing Nigerian proceedings arising from a 2015 sale of automotive gasoil. The contract’s detailed terms contained an exclusive jurisdiction clause in favour of the High Courts in London. Top Oil applied retrospectively to extend time to challenge jurisdiction and sought a declaration that the English court lacked jurisdiction or a stay pending the Nigerian proceedings. The central issues were whether Top Oil was bound by the detailed terms, whether the Nigerian claims fell within the clause, whether Top Oil had submitted to the jurisdiction or should receive relief from sanction, and whether strong reasons justified refusing anti-suit relief.

Augusta’s application for interim anti-suit relief was allowed. Top Oil’s application to challenge jurisdiction was dismissed.

1. The applicable threshold for the anti-suit application was a high degree of probability. The lower good arguable case threshold relevant to a forum non conveniens stay would also be met if that higher threshold was satisfied.
2. The detailed terms were agreed between Augusta and Cast Oil by conduct. The exercise of trigger pricing, which was provided for only in the detailed terms, made it highly probable that those terms had been accepted.
3. There was a high degree of probability that Cast Oil acted as Top Oil’s agent. The memorandum of understanding showed that Cast Oil would use Top Oil’s finance facility, bear the commercial risks and benefits, sell the product on the open market, and repay the facility. The evidence did not establish a substantial likelihood that the arrangement was corrupt from the outset. In any event, Top Oil had adopted or ratified the memorandum by later conduct after learning the material facts.
4. The indoor management rule and ostensible authority were distinct from actual authority. The former did not depend on Augusta’s state of mind, although Cast Oil’s knowledge might be relevant. If actual authority existed, Augusta needed to establish nothing further as the third party to the agency relationship.
5. Clause 17 covered the Nigerian claims, including claims against Mr Carles, because they arose out of or were connected with the agreement. Following Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd, the contractual basis for anti-suit relief applied and relief should be granted unless there were strong reasons not to do so.
6. Top Oil’s conduct, including its failure to make a timely jurisdiction application and its request for more time to file a defence, amounted to submission at common law. Alternatively, its default was serious and significant, its explanation was not a good reason, and relief from sanction would not have been granted under the Denton inquiry.
7. No strong reason justified refusing relief. Alleged delay by Augusta did not outweigh the exclusive jurisdiction agreement.

Costs of both applications were awarded to Augusta on the standard basis.