Guernsey: Anti-Anti-Suit Injunctions In Guernsey

Last Updated: 7 December 2017
Article by Simon Davies and Charlotte Henshall

Introduction

An anti-anti suit injunction is a form of anti-suit injunctive relief granted by a particular court to stop a party pursuing an application for an anti-suit injunction in another court.  As one might expect, this is a relatively rare occurrence. 

The Guernsey Court of Appeal case of Carlyle Capital Corporation (in liquidation) ("CCC") and others v Conway and others handed down on 27 April 2012, sets out the Guernsey position on anti-anti suit injunctions.  In this case, the Court of Appeal stated that the basis of the principles governing the granting of an anti-anti-suit injunction were the same principles as applied in respect of anti-suit injunctions, and emphasised that, whilst caution is required in granting an anti-suit injunction, "particular caution" should be applied in granting an anti-anti-suit injunction.  The reason for particular caution is that the effect of an anti-anti suit injunction may be to prevent a party from approaching the court that the parties have agreed will have exclusive jurisdiction over a dispute (or an aspect of a dispute) to complain that they are being sued elsewhere in breach of contract.

Here, the liquidators were successful in obtaining an anti-anti-suit injunction restraining the Eighth, Ninth and Tenth Defendants (the "Defendants") from seeking anti-suit relief in relation to Guernsey proceedings in the Delaware Chancery Court.

The anti-suit proceedings

To put this case into context, the liquidators brought common law and statutory claims against the former directors and managers of CCC alleging, inter alia, that the Defendants had breached their contractual and fiduciary obligations in relation to the management CCC.  In July 2010, the liquidators issued proceedings in Guernsey, Delaware, Washington D.C. and the State of New York and subsequently withdrew their claims in Delaware.  From December 2010, the proceedings concerned the issues as to the appropriate forum to hear these claims.  Some of the liquidators' non-statutory claims arose from alleged breaches of an investment management agreement (the "IMA") between CCC and the Eighth Defendant.  As the IMA contained an exclusive jurisdiction clause in favour of Delaware, the Defendants issued an application for an anti-suit injunction in Delaware to prevent the liquidators from pursuing their claims anywhere other than Delaware.  The anti-suit injunction was pursued on an inter partes basis.

In tandem with this, the Defendants challenged the jurisdiction of the Guernsey Court to determine the claims.  At first instance the Defendants were successful on the basis that the Delaware Court was the most appropriate forum for determination of the proceedings.  The Plaintiffs appealed to the Guernsey Court of Appeal.

The anti-anti-suit proceedings

In October 2011, the liquidators obtained an ex parte anti-anti suit injunction in Guernsey against the Defendants.  This prevented the Defendants from pursuing their anti-suit injunction in Delaware.  The Defendants' were unsuccessful in their application to have that injunction set aside, and so appealed to the Court of Appeal.

In March 2012, the Guernsey Court of Appeal allowed the liquidators' appeal against the jurisdictional findings against them, permitting, in effect, that all their claims should be heard in Guernsey.  

In the parallel Court of Appeal proceedings challenging the anti-anti suit injunction, the liquidators argued that the Defendants were seeking to subvert the effect of the Court of Appeal's March 2012 judgment by seeking in Delaware that which they had already failed to obtain in Guernsey.

In dismissing the appeal and upholding the anti-anti-suit injunction, the Court of Appeal set out the objectives and rationales underpinning the policy, which included (as set out by Lord Goff in Société Nationale Industrielle Aerospatatiale v Lee Kui Jak [1987] 1 AC 871):

  1. The jurisdiction is to be exercised when the "ends of justice" require it;
  2. The avoidance of wasting party and judicial resources and costs; and
  1. The restraint of the pursuit of foreign proceedings on the grounds of vexation or oppression, and vexation and oppression is a flexible concept which varies with the circumstances of each case.

In dismissing the appeal, the Court of Appeal held that "there is a strong public policy in Guernsey against multiplicity of litigation and the fragmentation of proceedings that can and should be determined in a single action."  The rationale behind that policy was the saving of costs and the avoidance of delay, uncertainty, inconsistent decisions and potential injustice.  The Court of Appeal went on to say that the fundamental principle of the interests of justice were best served "by the submission of the whole of the dispute to a single tribunal which is best fitted to give comprehensive judgment on all matters in issue in accordance with its own law which governs the vast majority of the claims."  In March 2012, the Court of Appeal had already found that the Guernsey court was the only court in which all the liquidators' causes of action could be pursued.

The Court of Appeal further held that exclusive jurisdiction clauses could be overridden in appropriate circumstances, for example to avoid a multiplicity of proceedings or inconsistent judgments, to give effect to a statutory right in one forum, or to protect a court's legitimately conferred jurisdiction.  The Court of Appeal considered that some of the liquidators' statutory claims were justiciable only in Guernsey and were inextricably linked with their non-statutory claims governed by Guernsey law for breach of fiduciary duty and gross negligence against each of the defendants.

Therefore, the Court of Appeal held that the interests of justice were best served by the submission of the whole dispute to the Guernsey court for determination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions