MSC Mediterranean Shipping Company S.A. & Ors v Interglobal Technologies Limited & Ors

An interim anti-suit injunction should ordinarily continue where, to a high degree of probability, proceedings are brought in breach of an exclusive English jurisdiction clause and no strong reason for refusing relief is shown. A consignee who takes delivery of goods or makes a claim under a bill of lading may become subject to the same contractual liabilities as an original party under Carriage of Goods by Sea Act 1992, including jurisdiction obligations. The contractual choice of English law determines the validity of the jurisdiction clause, so a foreign statute purporting to invalidate it is immaterial. Protective or interlocutory participation in foreign proceedings does not necessarily amount to submission. An anti-anti-suit injunction may be granted where there is a real risk of renewed interference with the English proceedings.

The claimants, an international carrier and associated entities, obtained an interim anti-suit injunction restraining Nigerian proceedings brought by the defendants concerning four bills of lading. The defendants applied to discharge the injunction, arguing that they were not bound by the bills’ terms, that the exclusive English jurisdiction clauses were invalid under Nigerian legislation, that the claimants had submitted to the Nigerian courts, and that there had been inadequate full and frank disclosure.

The claimants also sought continuation of the injunction to trial and an interim anti-anti-suit injunction after the defendants commenced and then discontinued further Nigerian proceedings aimed at restraining the English proceedings. The central questions were whether the bills incorporated the relevant terms, whether the defendants were bound by them, and whether any strong reason justified refusing or discharging relief.

1. Anti-suit injunction. The court applied the established principles under section 37(1) of the Senior Courts Act 1981. The claimants had to establish to a high degree of probability that the exclusive jurisdiction clauses governed the dispute; the defendants then had to show strong reasons for refusing relief.
2. Incorporation. The contracts of carriage were concluded between the carrier and shipper on the terms of the bills of lading. The terms printed on the reverse and identified on the front, including the exclusive English jurisdiction clause and English governing-law clause, were incorporated. Reference to the carrier’s website was sufficient notice.
3. Consignee’s liability. Under sections 2 and 3 of Carriage of Goods by Sea Act 1992, the consignee became subject to the same contractual liabilities as if it had been an original party. That followed because it was the named consignee, took delivery, and made claims under the bills. The statutory effect included the jurisdiction clause. Specific notice of the original terms was unnecessary.
4. Other grounds. Section 20 of the Nigerian Admiralty Jurisdiction Act 1991 did not affect the validity of the clauses, which was governed by English law under the contractual choice of law. Forum non conveniens considerations did not displace the parties’ contractual choice of forum. The claimants’ conditional appearances and steps directed to protecting or releasing arrested property did not constitute submission to the Nigerian substantive jurisdiction.
5. Disclosure and continuation. No material failure of full and frank disclosure was established. The interim anti-suit injunction was continued to trial because the defendants remained in breach. The defendants’ application to discharge or set aside it was dismissed.
6. Anti-anti-suit injunction and costs. The discontinuance of the further Nigerian proceedings was regarded as tactical, and there remained a real risk of repetition. An interim anti-anti-suit injunction was granted. The claimants were awarded their costs of both applications on the indemnity basis.

Not an appeal. The judgment determined applications concerning continuation and discharge of an interim anti-suit injunction and the grant of an interim anti-anti-suit injunction.

• High Court (King's Bench Division, Commercial Court). The interim anti-suit injunction was continued to trial, the discharge application was dismissed, and an interim anti-anti-suit injunction was granted.