Warner Bros. Discovery, Inc. & Anor v Nokia Corporation & Anor

An interim anti-anti-suit injunction may be granted without notice to protect the integrity of English proceedings where there is a non-negligible risk that foreign anti-suit or anti-interim-licence relief will prevent the English court from determining the claims. The court must consider comity, the risk of irremediable prejudice, the practical effect of the relief, and the strength of the threatened wrongdoing. The jurisdiction is flexible and may include anti-enforcement and mandatory relief. For temporary relief intended to hold the ring pending a return hearing, a demanding final-injunction or strong-probability test is not necessarily required. The court may apply an American Cyanamid-style balance of injustice, including to mandatory relief.

Warner Bros. Discovery, Inc. and Dplay Entertainment Limited brought urgent proceedings against Nokia Corporation and Nokia Technologies Oy concerning UK standard-essential patents and RAND licensing terms for video-coding technologies. The claimants sought confidentiality protection, permission to serve out of the jurisdiction, and an anti-anti-suit injunction with associated anti-enforcement and mandatory relief.

Related patent proceedings had been commenced or were anticipated in Brazil, Germany, the Unified Patent Court and the United States. The central issue was whether temporary without-notice relief was justified pending an inter partes return hearing.

1. Orders granted. The court confirmed the confidentiality order, permitted service out of the jurisdiction and granted a global anti-anti-suit order, including anti-enforcement and mandatory relief, to protect the English proceedings pending a return hearing.
2. The principles governing anti-suit relief apply broadly to anti-anti-suit relief, but particular caution is required because an AASI may create an even greater risk of interference with foreign proceedings. The purpose of an AASI is to protect the integrity of the English court process.
3. Comity required careful consideration. The order was directed to the defendants and their affiliates, not to the foreign courts. Relief was justified by the English court’s sufficient interest in determining the UK patent and RAND claims.
4. Because the order was temporary and intended to hold the ring, the court accepted that a stringent final-injunction or strong-probability test was not necessarily required. The assessment involved the balance of the risk of injustice and the multifactorial nature of quia timet relief.
5. The practical consequences, rather than whether relief was labelled prohibitory or mandatory, determined the approach. The court considered whether granting or withholding relief carried the lower risk of irremediable prejudice.
6. The evidence established a non-negligible risk that Nokia might seek foreign ASI or AILI relief. If granted, such relief might prevent substantial parts of the English proceedings, causing harm for which damages would be inadequate. Notice was therefore not required because it might defeat the purpose of the application.
7. The full scope of relief, including measures concerning affiliates and foreign orders, was justified by the uncertainties of the rapidly developing jurisdictional conflict and the need to preserve the court’s ability to determine the issues on notice.