Tyson International Company Limited v GIC Re, India, Corporate Member Limited

Permission to appeal under CPR 52.6(1)(a) requires a realistic, rather than fanciful, prospect of success. A construction argument may be possible without being sufficiently arguable to justify permission, particularly where the same construction has been rejected by experienced judges and the contractual language is clear in context.

Where competing jurisdiction and arbitration provisions are irreconcilable, a hierarchy clause may determine which provisions prevail. The existence of a general policy favouring arbitration does not require reconciliation where the contractual terms cannot sensibly operate together. Costs generally follow the successful party, and an interim payment on account should reflect the uncertainty of detailed assessment and any reason for caution.

The judgment concerned consequential matters following the court’s judgment of 21 January 2025, which granted Tyson International Company Limited a final anti-suit injunction and refused GIC Re’s application for a stay under section 9 of the Arbitration Act 1996.

GIC sought permission to appeal on two grounds: construction of a confusion clause in the facultative certificates, and the conclusion that the English court lacked auxiliary jurisdiction over a New York arbitration. The court also determined costs, an interim payment on account and the date from which interest on costs should run.

1. Permission to appeal. The applicable test was whether either proposed ground had a real or realistic prospect of success under CPR 52.6(1)(a), meaning a realistic rather than fanciful prospect. No separate compelling reason for an appeal was advanced.
2. Ground 1. Although GIC’s construction of the confusion clause was possible, it did not properly give effect to the wording of the clause as a whole and unnecessarily restricted the ordinary meaning of confusion. Commercial common sense and the factual context did not justify a different construction. The fact that the language was unusual or novel did not itself justify permission. The later Court of Appeal judgment in the related Partner Re proceedings had also overtaken earlier views expressed on permission. Permission was refused.
3. Ground 2. The court had applied the principles governing competing jurisdiction and arbitration clauses. The MRCs provided for English law and exclusive English jurisdiction, whereas the facultative certificates provided for New York arbitration and New York law as the proper law of the contract. The provisions could not realistically be read together. Properly construed, the confusion clause gave precedence to the MRC terms, including their jurisdiction provisions. The presence of a hierarchy clause materially distinguished Sul America. No novel point of legal principle arose. Permission was refused.
4. Costs. Tyson was the successful party overall and was entitled to recover its costs on the standard basis, including the costs of the first anti-suit injunction application and the February 2024 consequentials hearing. The court ordered an interim payment on account of £265,000, applying caution because the claimed hourly rates exceeded the London 1 guideline rates and detailed assessment might result in deductions.
5. Interest on the costs was to run at the judgment rate from three months after the date of the order, allowing time for preparation and consideration of the detailed bill.

The judgment followed the court’s judgment of 21 January 2025 granting a final anti-suit injunction and refusing a stay under section 9 of the Arbitration Act 1996. This judgment refused permission to appeal from that decision.